10 Common mistakes that trial lawyers make (Part 4)

10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them (Part 4)

page 4

By Jeffrey I. Ehrlich

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Mistake 7: Failing to get the proponent of each proposed instruction on the record

Jury instructions are often hashed out in chambers, in a hurry, shortly before the jury is instructed. If you are not satisfied with any of the final instructions the court has decided to give, be sure that you get the trial court to make a proper record of court’s ruling on jury instructions, either by going on the record or by issuing a minute order. Make sure that the record accurately reflects the proponent of each instruction – you do not want to be accused of inviting error for an instruction you did not propose. Make sure the record reflects the judge’s ruling and rationale, as well as your objections. If the instruction is too general, incomplete, or vague, both object and propose language to cure the problem. (Civil Trials, ¶ 14:225.)

Mistake 8: Failing to make a timely attempt to have a defective or incomplete verdict cured

There is probably no moment in the practice of law more dramatic than when a jury verdict is read. It is understandable that, in that moment, it is very difficult for trial counsel to remain attentive to whether there are any technical flaws in the verdict. But it is critical that this be done, so that any defect in the jury’s verdict can be cured by the jury before they are dismissed. In addition, under section 618 of the Code of Civil Procedure, if more than one-fourth of the jurors disagree with a verdict upon being polled, the jury must be sent out again. But if no disagreement is expressed, the verdict is complete and the jury will be discharged.

Trial counsel must be aware that jurors have the right to change their mind between the time they vote in the jury room, and when they are polled. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266, 182 Cal.Rptr. 123.) Hence if the polling reveals that fewer than 9 jurors voted in favor of a key element on the verdict form, counsel must be alert, and call the issue to the court’s attention, or any objection about the verdict on appeal will be waived. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 251, 92 Cal.Rptr.3d 862 (2009). In Keener, polling revealed that only 8 jurors agreed with the 80/20 apportionment of fault on the verdict form. But since the issue was not raised before the jury was discharged, it was waived on appeal.

Mistake 9: Failing to make a timely new-trial motion to correct a damage award that is either excessive or inadequate

Ordinarily, errors are not waived on appeal by the failure to make a motion for new trial. (Civil Appeals, ¶ 8:278.) But this rule does not apply for a claim of inadequate or excessive damages. In order to preserve the issue for appeal, you must seek a new trial on damages. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719, 79 Cal.Rptr.3d 561.) Beware — this rule applies to both jury trials and to bench trials. (Id. [“A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or by the court.”])

Mistake 10: In federal court, failing to make and renew a judgment as a matter of law if you believe that the verdict is not supported by the evidence

In federal court (but not in a California state court) in order to preserve a challenge to the sufficiency of the evidence to support the verdict in a civil case, a party must make two motions. First, a party must file a pre-verdict motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a); Second, the party must file a post-verdict motion for judgment as a matter of law or, alternatively, a motion for a new trial, under Rule 50(b). (Nitco Holding Corp. v. Boujikian (9th Cir. 2007) 491 F.3d 1086, 1089.) If these steps are not taken, the challenge to the sufficiency of the evidence to support the verdict is forfeited.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.