Wednesday, August 18, 2010

Useful Practice Nuggets

Cornell University v. Gordon, provides trial practitioners with the following, helpful reminders:

1. If a party consents to the submission of the matter to the alternate jurors as well as the regular jurors, she fails to preserve her argument that the court committed reversible error by submitting the case to a jury of eight persons rather than six.

2. Timely objection must also be made under CPLR 4113(a), that 5/6ths of the jurors constituting the jury must agree (here, the vote was 6-2), or such objection will again be deemed unpreserved.

3. Since all eight jurors deliberated from start to finish, their deliberations would not be invalidated, as in a situation where alternates are substituted for regular jurors after deliberations have begun (see Gallegos v. Elite Model Mgt. Corp., 28 AD3d 50 [2005]).

Arrington v. Bronx Jean Co., Inc., reminds insurance defense practitioners that a carrier's delay in assigning defense counsel may constitute a reasonable excuse for the defendant's default in appearing.

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