It may be fairly assumed that most trial lawyers do not want to learn the hard way that the judge’s instructions to the jury can make or break their case. Whether the defense succeeds in securing a professional judgment charge or is on the receiving end of a missing document instruction, for example, may very well color the jury’s view of the entire case. Therefore, experienced attorneys will plan ahead in order to take advantage of all possible means of seeking and opposing requests to charge. Likewise, if a desired jury instruction is denied or an erroneous charge is given, trial lawyers must be alert to their obligation to preserve the point for appellate review.
Relevant Statutory Provisions
Although much of the New York law of evidence is based on the common law, it is the CPLR that requires trial objections to be made in appropriate cases.1 There is an additional statutory provision concerning jury instructions, with special requirements for those who take issue with any portion of the court’s charge.2 Thus, it is of the utmost importance for trial attorneys to familiarize themselves with the procedures enumerated in CPLR §4110-b, which sets forth several key steps to be taken at different stages of the trial:
At the close of the evidence or at such earlier time during the trial as the court reasonable directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
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