Trial tip: preserve your objections

Cases are won or lost at trial. Appeals are much harder to win after you've lost at trial. If you want to win the appeal, you had better preserve your objection. Otherwise, spend the $455 appellate filing fee on something else.

The case is Tirreno v, Mott, a summary order decided on April 30. This case took forever to reach the Second Circuit, for some reason. The jury verdict was in December 2007. More than two years later, the Second Circuit gets the case. Plaintiffs claimed that the municipal defendants effected an unreasonable search and seizure in violation of the Fourth Amendment. The argument on appeal is that the trial court did not instruct the jury that the defendant has the burden of showing that plaintiffs consented to the search.

There is no dispute that the plaintiffs did not object to the disputed jury instruction. This means they have to prove "plain error" on appeal, a much harder standard of review, amost impossible. It's not possible here. It can't be plain error because the law is not even clear that one party or the other has to prove at trial that the plaintiff did not consent to the search. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), the Second Circuit rejected the argument that the defendant bears that burden. But the Court of Appeals may have reached a contrary holding in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002).

The tension between these two cases will have to be untangled on some other day. For now, it's enough for the Court of Appeals (Raggi and Hall) to say that it cannot be "plain error" for the trial court to reject plaintiff's instruction on this issue without an objection at trial, particularly since the trial court engaged the parties in a thoughtful discussion about the jury charge during trial, and this issue did not even come up.

This is a good time to say that trials are not just about the facts. They are about the law. Some lawyers go into trial focused on the facts, and they take a cursory view on the law. But the jury instructions are important, and some juries go over the instructions with a fine-tooth comb, particularly if the judge gives the jury a copy of the instructions. When the judge holds the charge conference to talk about the jury instructions with counsel, grab your research folder and ask the court to conform the charge to your liking. The court may reject your argument, but that will give you a fighting chance on appeal if you lose the case.