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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 115463
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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In a claim and delivery case, jury was asked to circle items

Customer Question

In a claim and delivery case, jury was asked to circle items in a stack of photos they intended the plaintif to have and not circle the items they intended the defendant to have.
Judge asked the attorneys 3 times is they were sure that there were no discrepancies before releasing jury.
Theee are discrepancies. There are many items that are in several pictures but only circled in one picture.
Question: The act of not circling an item is as important as the act of circling an item?
Question: Does the discrepancy benefit the Defendant if defendant currently has possession.
Submitted: 6 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If the item is circled in one picture it is sufficient. Even if the item shows up in 10 pictures, the fact it was circled in one picture would reflect the intent of the jury. If an item is not circled in any picture at all, that too is indicative of the intent of the jury if that item appears in multiple pictures. The court is entitled to rely on the fact that the item was circled one time in one picture or was not circled in any of the pictures with regards ***** ***** determination of the items.
Customer: replied 6 months ago.
If there are five items that are found in five photographs and if the item in question is described under each of the photographs corresponding item # but only one of the five is circled, that this means the circle wins? Isn't the act of not circling an item as important as the act of circling an item?
Now if the jury was instructed to start at the begginning of the list and told that if they mark the first photo where an item is showm, all other photos weather circled or not would be considered circled.
The judge went out of her way to make sure the attorneys were sure that they, after looking at the 40 pages of photograps, saw no questions of jury intent. They barely glanced at the document.Im going to leave any issues with jury intent to the Plaintiff to decide how they want to address issue with the court. They cant claim I am in contempt if I'm returning items where there is no question as to jurys intent, right?Are my points valid? Or am I missing something?
Customer: replied 6 months ago.
I believe tge hudge
Customer: replied 6 months ago.
I believe the judge realized the potential for discrepancy and thats why she made a huge point three times that once shereleased the jury, that was it. She couldnt call them back.There were over 200 photographs, 4 per page, front and back. If I had been the Plaintiffs attorney, I would have requested that the jury write out a list of what goes to plaintiff and what goes to defendant to erase any potential intent issues.
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.
It would be an issue of contention that you could have raised as an objection prior to the judgment when the photos were returned, but if you did not raise the objection in the court at the time the pictures that occurred, the fact that it was circled even one time is actually controlling as the courts find most jurors do not understand they should circle it in each and every photograph. So, it is an argument that should have been raised at the time the photographs were returned by the jury before the entry of the judgment and the judge could have instructed the jury to go back if they wanted to. If this was not raised by the attorneys then it is possible the attorney was negligent and you could pursue the attorney for malpractice if your attorney who represented you did not raise this as an objection before the judgment was entered.
So if you do not return a circled item they could raise it as contempt and they can and likely will argue as I said above and argue the failure to object at the time was your attorney's fault and that they are entitled to the item. That is the general way the courts will look at this though, they asked the attorneys if there were issues, the attorneys reported no issues with the photos and if it was circled in one photo the court will say the property goes to the plaintiff.
The issue then becomes malpractice involving your attorney and you would argue the judge made it an issue and since your attorney did not raise it they have caused you harm by their negligence in failure to object to the photos not having the property circled in all photos.
Customer: replied 6 months ago.
It seems that what you are saying is that the act of circling an item carries more weight than not circling an item. That cant be right, can it? Or is it just dependant on how the judge chooses to interpret it?
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.
The act of circling is an affirmative action of the jury. They physically had to go out of their way to circle something, unlike not circling something which can indicate an oversight. That is how the judges interpret it and also how you would interpret it if the property was a piece that was circled and you were the one getting the circled property.
Customer: replied 6 months ago.
Is this a good case for a malpractice suit?
Customer: replied 6 months ago.
Neither attorney took the time to sit with us and explain the stack of photos. I would have instantly asked why an item was circled here and not circled there? The jury could have then mase their intent clear.
Customer: replied 6 months ago.
The jury spent more time in deliberations that the trial took to litagate.
Customer: replied 6 months ago.
Does a discrepancy ever benefit the defendant since defendant already has possession?
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.
We cannot say it NEVER benefits the defendant, only that in most all situations it does not. If the attorney did not review the photos despite the judge's admonition it sounds as though there is a potential for malpractice. The fact the jury spent so much time deciding and physically did circle an item on one photo would actually support the contention that the circling was an intention of the jury.