Page 11 - The Suffolk Lawyer - March 2021 - Vol. 36, No. 2
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PERSONAL INJURY  • SPECIAL SECTION • PERSONAL INJURY



              The Charge Conference: A Crucial Part of Any Trial


                                                                           By Prisco Vardaro

                   t the close of all evidence, and after all sides have rested, posed jury verdict questions in order to preserve objections to the
                   the judge presiding over the trial will hold a “charge confer- jury verdict questionnaire for appellate review.
            A ence” with counsel. This article will give a brief outline of the         It goes without saying that trial practice is hard work. Trial attor-
            function of the charge conference, some insight as to its importance, neys spend long hours preparing their cases and sharpening their
            and some ideas about what to do in preparation.                          presentations of testimony and evidence to the jury. It would be a
               CPLR § 4110-b provides, in pertinent part, “At the close of the devastating situation for an attorney to present a concise, powerful
            evidence or at such earlier time during the trial as the court reason- and effective case to the jury, only to have it undone by unfavorable
            ably directs, any party may file written requests that the court in- jury charges on the law given by the court.  Even worse, a powerful
            struct the jury on the law as set forth in the requests. The court, case presented to the jury during the trial can be sabotaged by an
            out of the hearing of the jury, shall inform counsel of its proposed unfavorable jury verdict questionnaire. It is therefore imperative that
            action upon the requests prior to their arguments to the jury ….”        the attorney prepare for and conduct the charge conference with
               The “written requests” referred to in § 4110-b are commonly every bit of effort that was put into the presentation of the case to
            called “Requests to Charge” by counsel and the court.  These are the jury.
            usually just a listing of the jury charges from the NY Pattern Jury         There will be many pattern charges that both you and your ad-
            Instructions (PJI) that an attorney would like the court to read to versary will both request. this “overlap” of requested charges will
            the jury after summations.  Most attorneys simply list the sections likely not require argument during the charge conference. However,
            from the PJI by section number along with the title of the section.      there will be sections of the PJI that your adversary requested that
               Most judges will use the pattern instruction from the PJI, with you did not, or that you requested that they did not.  Usually there
            some minor variations according to the facts of the case or the is a very good reason for this discrepancy: the charges are likely to
            judge’s preference. Many judges have been charging juries for many                                                    (Continued on page 27)
            years and have “tweaked” the pattern charge over the years to more                                Prisco Vardaro
            clearly convey the legal concept of the particular charge to the jury.                            Partner and Senior Trial Attorney
            Counsel may object to deviations from the pattern charges but                                     Vardaro & Associates, LLP
            should be warned that even the PJI itself states that the charges                                  Prisco Vardaro is a partner and senior trial attorney
                                                                                                               with the firm of Vardaro & Associates, LLP. He has
            are merely “guides.” “Trial judges are free to adopt, modify, or reject
                                                                                                              tried medical malpractice, Labor Law and general li-
            the charges, so long as they adequately convey the sum and sub-                                 ability cases for over twenty years.
            stance of the applicable law.”1
               Counsel should keep in mind that jury charges are not absolutely
            confined to those contained within the pages of the PJI.  Depending
            on the facts and/or legal issues raised by a certain case, counsel
            can submit an appropriate jury charge to the court that is not taken
            from the PJI at all. When doing this, counsel should be prepared to
            argue the legal and factual basis for the requested charge. As a gen-
            eral rule, any charge that is requested which does not come from
            the PJI should be based upon relevant case law. To be safe, the re-
            quested charge itself should quote the holding of the case which
            counsel is relying upon. Since the court is charging the jury with the
            law, it stands to reason that a jury charge can be a direct quote
            from the case law itself. However, the language of the charge given
            to the jury, even if it is a direct quote from a controlling case, must
            still be clear in its explanation of the law and how it is to be applied
            to the facts by the jury.
               Most trial judges will ask for counsel to submit their Request to
            Charge Jury at the beginning of the trial. Counsel will usually have
            the opportunity to submit Supplemental Requests should the evi-
            dence and/or circumstances warrant additional sections of the PJI
            to be requested. These submissions by counsel will be the subject
            of the charge conference along with the jury verdict questionnaire,
            (sometimes referred to as the “jury verdict sheet”).
               As to the Jury Verdict Questionnaire, most judges will ask plain-
            tiff’s counsel to submit proposed jury verdict questions to the court
            at the close of plaintiff’s case. Defendant’s counsel can submit their
            own proposed jury verdict questions at the close of plaintiff’s case
            as well. Some of my colleagues in the defense bar take the position
            that defendants should not be required to submit proposed jury ver-
            dict questions. In my view, defendants should always submit pro-


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