Reprinted with permission from the August 5, 2024, edition of Connecticut Law Tribune © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
This is the second article of a two-part series outlining some of the tools and advantages of presenting a complex business dispute to a jury utilizing the CLD.
By Brian J. Donnell
Complex business cases carry an increasing level of exposure to corporate defendants. During 2023 throughout the United States, there were 89 jury verdicts against corporate defendants that resulted in judgments of more than $10 million, a 15-year high. (See the article, “How Big IP Judgment Winners Are Insuring ‘Nuclear Verdicts,’ —Law360).
Whether these could be considered “nuclear verdict” or just a reflection of the issues at stake is a topic for a separate article. But the increasing level of exposure in jury verdicts for business cases is worth noting for purposes of inter alia drafting dispute resolution clauses in most commercial contracts and applications to move business cases to the complex litigation docket in Connecticut Superior Court (CLD).
This is the second article of a two-part series outlining some of the tools and advantages of presenting a complex business dispute to a jury utilizing the CLD.
Case Study: ‘Girolametti v. City of Danbury’
In October 2023, a Connecticut jury in Girolametti v. City of Danbury ruled in favor of the plaintiff building owners after a five-week trial. The jury found the actions of the city of Danbury’s building officials during the permitting and construction process exhibited reckless disregard for the public health and safety, in violation of Conn. Gen. Stat Section 52-577n. The jury awarded the Girolamettis damages of almost $17 million, to which the court added costs and statutory interest of 10% per annum. The trial court upheld the jury verdict after extensive post-verdict motions and Danbury has now appealed. See Girolametti v. City of Danbury, No. X10-UWY-CV-10- 6011711 S, 2024 Conn. Super. LEXIS 591 (Super. Ct. Mar. 27, 2024). This case is a prime example of how large business cases can be tried to a jury using the complex litigation docket.
Motions in Limine and Streamlining the Trial Objection Process
It is critical to set specific dates at the Trial Management Conference (TMC) for filing all motions in limine (MILs), objections, replies and even the date(s) for argument, if possible. Key areas worth addressing in the MILs include:
- Expert witness scope and qualifications
- Admissibility of collateral prejudicial matters and settlement or mediation efforts
- All complex evidential issues for any documents or videos or reconstructions or reenactments
- Whether or not a construction site view by the jury or stipulated video tour should be used
The goal should be to get rulings on all exclusion or limitation issues so that during trial all the parties have to do to Object is to say: “Objection, law of the case” and side bar if necessary.
These MILs have to be decided by the actual trial judge. They provide a great opportunity to get the judge into the details of the case so that the judge is fully educated prior to the start of evidence. Although the actual decision to exclude evidence may occur when objections are made during trial, MILs allow a development of the foundational basis for those rulings.
The Importance of Early Drafting of the Requests for Jury Charges and Jury Verdict Forms and Interrogatories
Of course, it is counsel who submits to the trial judge the parties’ drafts of the requests to charge and the jury interrogatories and verdict forms. However ultimately it is the judge’s own purview and responsibility to author and issue the jury charge and forms as far as the appeals courts are concerned. So, each counsel has to carefully condense into 15 or less requests to charge the entire legal framework for their case fully researched and crafted into jury charge format where there is: “a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.” PB Section 16-23. Remember, the appellate courts can disregard any claim of error in the jury charge given by the judge unless “… the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” PB Section 16-20.
So long before you start evidence you should have your requests carefully researched and written in near-final form, including what you expect the facts will be as proven at trial. You will have little time or ability to start drafting these requests for the first time as you are finishing evidence, preparing your closing arguments and arguing all of these requests during the charging conference. Therefore, at the TMC, the parties should ascertain whether the trial judge has a preferred group of standard jury charges on expert witnesses, burdens of proof, and most procedural and general evidential matters. Additionally, there are about 400 civil jury instructions from which you can quote or cite to in your requests to charge.
Because each of the parties are limited to only 15 requests to charge (PB Section 16-23) the goal at the TM Conference should be to have the judge set a framework for the judge to circulate a Word version of the judge’s own standard charges to all counsel. Then all counsel would simultaneously propose their 15 requests that supplement or substitute for the judge’s group and then do the same for all of the proposed drafts of the jury interrogatories and verdict forms. The judge has to squeeze in the charging conference between the completion of evidence and the closing statements of counsel and jury charge. PB Section 16-24.
This frequently becomes a rushed drafting negotiation on the record where all counsel are trying to persuade the judge to opt for their versions of their submissions and the judge is revising his final versions “on the fly.” The charging conference is where all the hard work you did earlier carries the day because the judge absolutely does not want to get it wrong for both the jury and the appellate court.
Then, if you do not win every important point (which you may not) be sure to calmly and fully state your exceptions on the record bearing in mind that you are preserving the record for appeal at that point.
Taking the Verdict and the Post-Verdict Motion Process
After the proverbial “knock on the door” by the jury, which is now usually a text message from the court officer, everyone has to get back to the courtroom on 10 minutes notice as set forth in the TMO for jury questions or for a jury verdict. In the Girolametti case, the jury was read and given individual copies of the jury charges by the judge by the lunch break, the jurors were then given one set of the hard copy trial exhibits and one set of jury interrogatories and verdict forms as well. The jury came back to ask two questions and then they returned the next day with their verdict by around noon.
In your own cases, if the jury asks a question, make sure that it is marked as a court exhibit after there is an answer formulated by all counsel and the court and it is read to the jury, and then state any exception you may have on the record after the answer is given for appeal purposes if necessary.
If it’s the verdict, sit quietly while the judge reads it first, then the judge will hand it back to the clerk who reads it verbatim, usually twice, on the record. The judge then polls each of the jurors to state whether or not that verdict is their individual and unanimous verdict. Usually, the judge then gives a gracious thank you to all the jurors and they are dismissed.
After the jurors leave, and if the judge has not already done so, move the court to accept the verdict under PB Section 16-31 (meaning the judge holds that the verdict is technically correct). Then ask the court to set a schedule for all post-verdict motions to be filed with all objections and replies and even schedule a hearing date if at all possible. Do not let this slip or you could be out a half year or more before you actually have a “final judgment” that would be the start of the appeal or execution process with interest accruing.
Also, if the parties or counsel want to interview any jurors who are willing to speak with them post-verdict this is the best time to set the ground rules, so you are not going “rouge” with your trial judge who still has jurisdiction over them and you.
Final Thoughts
Although the conventional wisdom long has been to steer all large complex business litigation cases away from Superior Court jury trials, and into either arbitration or bench trials, the tools now available on the complex litigation docket in Connecticut to both select an impartial and attentive jury, and to streamline the trial process, may call into question that conventional wisdom. After all, in the Girolametti case the best pretrial estimate by the defendants was that it would take two months of evidence working five days a week to complete testimony from 76 witnesses. In the end it took only five weeks, with less than half the expected number of witnesses being called, to try the case to verdict. A long hard trial to be sure, but one where ordinary citizens actually followed the law and judged carefully the fact and expert witnesses who testified. To paraphrase a famous cereal commercial from long ago, “try it, you’ll like it.”
Brian J. Donnell is a partner in the New Haven office of Barclay Damon. He has over 35 years of legal experience, with a primary focus of his practice on design, construction, and business contract drafting and litigation in state and federal courts for both jury and non-jury matters and for arbitrations and mediations. Donnell can be reached at 860-519-7571 or bdonnell@barclaydamon.com.