New ‘Traps’ Highlight: Hazards at the End of a Jury Trial, Part 1

Thursday, July 29, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. Attorney James E. Harvey of O'Malley, Harvey and Brosnan LLP is again serving as editor-in-chief for the project and has worked closely with liaisons from several MBA section councils.

As the guide nears completion, we’re continuing to publish excerpts in eJournal to highlight some of the “traps” that readers will find in the upcoming Seventh Edition of Traps for the Unwary. View this week’s “trap,” plus previously shared examples, below.

TRAPS EXAMPLE: HAZARDS AT THE END OF A JURY TRIAL (PART 1 of 3)

As a jury trial is coming to its end, please keep in mind:

Attorneys must object to a trial judge’s failure to provide a particular substantive instruction of law to the jury by identifying the substantive law omitted, not merely by referring to the numbers of written requested jury instructions. Mere enumeration ordinarily will not suffice to preserve the objections on appeal, unless the trial judge instructs otherwise. The objections must be made before the jury retires to consider its verdict, or that issue is waived for appeal. Mass. R. Civ. P. 51(b). Flood v. Southland Corp., 416 Mass. 62, 66–68, 616 N.E.2d 1068 (1993). The First Circuit requires an objection to be made after the charge is given; an objection only made before the charge is given will not preserve appellate rights. Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1069 (1st Cir. 1990).

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