Trial lessons: It’s hip to be square

I'm a "play-it-safe" guy. Mom (a non-lawyer) always said that the law is very black and white. What she didn't know, and what I learned at law school, is that the legal battlefield is over the vast no-man's land of gray, solidly between the black and white. In order to avoid the gray, it is best to cling as tightly as possible to the black and white. Essentially, we should all follow the rules whenever possible. Failure to follow the rules oftentimes creates that battlefield. Here is one example. Our firm handled an appeal recently where the issue was whether the trial judge properly instructed the jury. Plaintiff's counsel requested an instruction, and the judge refused the request. The appeal should be solely about that issue. But a preliminary question is whether plaintiff's counsel properly preserved the issue for appeal. In the trial court, both sides submitted their jury instructions. The judge reviewed them, and counsel discussed them with the judge in chambers and off the record. Plaintiff's counsel objected to the omission of his requested jury instruction but, as I mentioned, there was no court reporter recording that discussion.

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