This document provides an overview of jury trial procedures in New York Supreme Court. It discusses the key stages in a jury trial, including: 1) filing a note of issue and certificate of readiness after discovery is complete; 2) pre-trial conferences where the parties discuss the case with the judge; 3) determining whether the trial will be before a jury or judge; and 4) the general sequence of a jury trial, including motions in limine, jury selection, opening statements, presentation of evidence, closing arguments, and jury instructions.

1. Adam
Leitman
Bailey,
PC
Colin
E.
Kaufman
September
6,
2012
55
minutes
The
Jury
Trial
in
New
York
Supreme
Court
Practice
A
Brief
Overview
A
'trial'
…
is
…
an
'examination
before
a
competent
tribunal,
according
to
the
law
of
the
land,
of
the
facts
or
law
put
in
issue
in
a
cause,
for
the
purpose
of
determining
such
issue'.
The
word
'trial'
in
'its
commonly
accepted
meaning
*
*
*
is
that
part
of
a
proceeding,
criminal
or
civil,
which
is
deemed
to
begin
with
the
opening
of
the
case
to
the
jury
and
ends
with
the
verdict'
[citations
omitted].In
re
Zuckerman's
Estate,
168
N.Y.S.2d
83,
86
(Sur.
Ct.
Nassau,
Bennett,
Surr.
1957).
1 After
the
completion
of
discovery,
plaintiff
serves
and
files
a
Note
of
Issue
and
Certificate
of
Readiness
-­‐
Uniform
Civil
Rules
For
The
Supreme
Court
And
The
County
Court
§
202.21
a. The
Certificate
of
Readiness
avers
that
all
necessary
discovery
has
been
completed
or
waived.
b. 20
days
to
move
to
strike
2 Case
is
normally
conferenced
one
or
more
times
(where/when
depends
on
the
county)
Unif
Rules
§§
202.26,
202.33(b)
a. This
is
not
a
pro
forma
appearance
b. Win
the
Conference
–
Win
the
Case
c. Know
your
facts
(and
know
their
facts),
know
the
law
d. Get
the
Court
on
your
side
e. Bring
up
evidentiary
issues
(if
advantageous
to
you
to
do
so)
3 Trials
can
be
jury
(civil
trials
have
a
jury
of
six
+
2
alternates)
or
non-­‐jury
(tried
by
a
judge
sitting
alone
–
also
known
as
a
bench
trial)
–
CPLR
§
4102,
Unif
Rules
§
202.21(c)
a. Choice
may
have
been
determined
by
contract
b. Strategy,
tactics
and
expense
all
go
into
the
calculus
of
selection

2.
4 General
outline
of
a
jury
trial
-­‐
can
be
varied
by
the
Court
CPLR
§
4011;
may
be
bifurcated
Unif
Rules
202.42
–
“The
sequence
of
proceedings
at
a
jury
trial
has
been
standardized
by
tradition”
§
393.
Sequence
of
trial,
SIEGEL-­‐NYPRAC
§
393.
Note
that
rules
differ
slightly
in
Commercial
Division.
Also
note
that
you
can
challenge
the
Court’s
leaning
(before
decision)
on
the
basis
that
variations
must
be
“in
order
to
achieve
a
speedy
and
unprejudiced
disposition
of
the
matters
at
issue
in
a
setting
of
proper
decorum”
a. Motions
in
limine
i. To
exclude
or
limit
inadmissible,
immaterial
or
prejudicial
evidence,
State
v.
Metz,
241
A.D.2d
192,
198,
671
N.Y.S.2d
79,
83
(1st
Dept.
1998)
ii. Burden
is
on
the
movant
to
establish
the
evidence
is
actually
inadmissible,
irrelevant,
immaterial,
and/or
unduly
prejudicial,
Van
Wert
v.
Randall,
35
Misc.
3d
1202(A),
2
(Sup
Ct
Rensselaer,
Hummel,
J.
2012).
iii. May
be
made
before
jury
selection
(and
should
be
if
it
is
something
which
could
poison
your
panel)
iv. Motions
in
limine
evoke
preliminary
ruling
–
they
do
not
necessarily
preserve
your
record,
Parker
v.
Mobil
Oil
Corp.,
16
A.D.3d
648,
650,
793
N.Y.S.2d
434,
436
(2d
Dept.
2005).
1. Be
alert
for
changes
in
the
situation
as
it
eventuates
at
trial,
see
e.g.
People
v.
Carmona,
82
N.Y.2d
603,
626,
627
N.E.2d
959,
972
in
dissent
by
Smith,
J.
(1993)
v. Use
and
oppose
motions
in
limine
strategically
b. Provide
the
Court
with
i. Marked
pleadings,
BP’s
Interrog
Responses,
Unif
Rules
§§
202.35,
CPLR
§
4012
ii. Requests
to
charge
1. Always
preliminary
iii. Usually
post-­‐trial
charge

3. iv. Maybe
Memorandum
of
Law
1. Some
judges
require
one
2. If
not
required,
consider
the
tactical
implications
a. Makes
the
Court’s
job
easier
b. Opportunity
to
educate
the
Court
c. Makes
opposing
counsel’s
job
easier
and
educates
her
also
c. Jury
Selection
i. CPLR
§§
4104
–
4110,
Unif
Rules
§
202.33,
throughout
NYC
under
White’s
Rules
Unif
Rules
202.21
(g),
Appendix
E(B)
1. Take
charge
before
the
jurors
in
the
box
are
seated
2. Jurors
will
have
filled
out
questionnaires
3. Plaintiff
addresses
the
jurors
first
a. Can
discuss
general
outline
of
the
alleghations
b. Can’t
discuss
specifics
of
the
evidence
c. Can’t
discuss
law
4. Challenges
a. Consent
excusals
if
permitted
i. What
goes
around
comes
around
b. Challenges
for
cause
c. Peremptory
challenges
(3
per
side
–
not
per
party)
i. The
“board”
passes
first
to
plaintiff,
then
to
D’s
as
a
group
(First
round)
ii. Peremptory
challenges
are
exercised
singly
and
alternately
until
no
further
challenges
or
until
challenges
are
exhausted
(note
that
once
you
pass,
you
can
no
longer
challenge)
iii. Second
round
D
goes
first
iv. Use
of
perempt’s
is
highly
tactical
v. My
feeling
is
you
should
save
the
last
bullet
for
yourself
–
others
believe
you
should
fire
until
the
weapon
is
empty

4. 5. Alternates
)(one
challenge
for
each
two
seats)
a. designated
v
non-­‐designated
6. The
mechanics
of
getting
the
selected
jurors
to
the
clerk,
sworn
and
instructed
when/where
to
retrun
vary
slightly
county
by
county
d. Preliminary
Charge
–
NY
Pattern
Jury
Instructions
–
Civil
1:1-­‐1:14
i. You
can/should
submit
PJI
charges
ii. Now
–
also
ask
for
a
“no
tweet”
charge
e. Opening
by
plaintiff
–
CPLR
§
4016(a)
i. P
goes
first
because
P
has
the
burden
of
production
and
persuasion
ii. Theory
of
opening
is
that
it
is
to
advise
the
jurors
or
the
evidence
intended
to
be
produced
iii. P
must
support
each
element
of
each
Count
or
subject
to
motion
to
dismiss,
Payton
v.
Brooklyn
Hosp.,
19
N.Y.2d
610,
611,
278
N.Y.S.2d
398,
891
(1967),
although
not
favored
Davidson
v.
Hillcrest
Gen.
Hosp.,
40
A.D.2d
693,
693,
336
N.Y.S.2d
296,
297
(App.
Div.
1972)
f. Opening
by
defendant
–
CPLR
§
4016(a)
i. Defendant
need
not
open
unless
D
has
a
burden
of
proof
–
Affirmative
defenses
ii. But
never
waive
opening
g. Proof
offered
by
Plaintiff
i. Witness
testifies
on
direct
examination
for
plaintiff
1. Perfect
direct
–
no
one
should
notice
the
lawyer
ii. Witness
is
cross-­‐examined
by
defendant
1. Perfect
cross
–
witness
says
nothing
but
yes
or
no
iii. May
be
redirect,
recross,
etc.

5.
h. Plaintiff
rests
(formally
ends
his
direct
case)
i. Run
down
your
checklist
one
last
time
before
you
rest
i. Oral
motion
to
dismiss
and/or
for
a
directed
verdict
by
defendant
(could
also
be
from
Plaintiff
for
judgment
as
a
matter
of
law)
CPLR
§
4401
i. Nearly
always
decision
reserved
or
denied
outright
j. Defendant
may
put
on
a
case
k. Defendant
rests
l. Motions
for
judgment,
to
dismiss
or
for
a
directed
verdict
by
defendant;
unusually
motion
for
a
directed
verdict
by
plaintiff
m. Charge
conference
(what
is
going
to
be
given
as
jury
instructions)
CPLR
4110
n. Defendant
“sums
up”
i.e.
gives
closing
argument
CPLR
§
4016(a)
o. Plaintiff
sums
up
CPLR
§
4016(a)
p. Judge
charges
the
jury
CPLR
§
4110-­‐b,
NY
Pattern
Jury
Instructions
–
Civil
q. Jury
deliberates
and
renders
its
verdict
r. General
&
Special
Verdicts;
Interrogatories
CPLR
§
4111
s. Post-­‐trial
motions
CPLR
§§
4404-­‐4406
i. To
conform
the
pleadings
to
the
proof
CPLR
§
3025(c),
Siegel
NY
Practice
§
404
ii. Set
aside
the
verdict
iii. Judgment
notwithstanding
the
verdict

6. t. Judgment
is
submitted
by
the
winner
either
to
the
clerk
(if
for
a
sum
certain)
or
the
Court
(if
judgment
includes
other
relief)
and
entered
by
the
Clerk
of
the
Court;
counter-­‐judgment
may
be
submitted,
CPLR
§§
5001
et
seq.,
Unif
Rules
202.48
[NOTE:
deemed
abandoned
if
not
submitted
within
60
days]
u. Miller
time©
Miller
Brewing
Co.
v.
Carling
O'Keefe
Breweries
of
Canada,
Ltd.,
452
F.
Supp.
429
(W.D.N.Y.
1978).