After the Verdict FAQs

The three things you must do before the judge dismisses the jury are:
1) Move to set aside an inconsistent verdict, or you will waive that argument. However, even if you waive that argument, you can move to set aside the verdict, for judgment as a matter of law, a directed verdict, or judgment notwithstanding the verdict on any other grounds.
2) Demand to have the verdict published in the rare event that the judge does not have it read in open court.
3) Check the verdict sheet and poll the jury.
You should bring the issue of an inconsistent verdict to the judge’s attention before asking to have the verdict published or to have the jury polled.

You must make an oral motion while the jury is still in the jury box. This gives the judge a chance to re-instruct the jury to correct any inconsistency. The judge can also set aside the verdict without sending it back to the jury for correction.

The most common reasons a verdict is inconsistent are:
1) A jury finds past or future medical expenses or loss of earnings but awards no damages for pain and suffering.
2) A jury finds liability without proximate cause, and those issues are so “inextricably interwoven” that fault without proximate cause is logically impossible.
3) A jury finds one party at fault but another not at fault, and their duties and acts or omissions were the same.

To search this issue, select the keyphrase “Set Aside Verdict” and enter “inconsistent” for your first search term and “verdict” for your second search term.

A verdict has no legal effect unless published in open court, even if entered by the judge or court clerk. This is why the judge will always have the clerk read each question on the verdict sheet and ask the jury foreperson to answer each question.

In the extremely rare instance that the judge does not have the jury publish the verdict in open court, remind the judge that it is not valid until published before being entered. If the judge denies the request, you have preserved the issue for appeal.

Anytime you are dissatisfied with the verdict, you should ask to see the verdict sheet and request to have the jury polled. You must do both while the jury is in the jury box.

An incorrect verdict sheet is not uncommon. It may answer questions that were not supposed to be answered or not answer essential questions. A judgment entered on an erroneous verdict sheet will be valid if you do not ask the judge to re-instruct the jury to correct it before dismissing them.

You should always ask to poll the jury if the verdict is against your client, even if it is a unanimous verdict, even if the judge doesn’t ask. Refusal to poll a jury after a request is never harmless error. Refusing to poll them on each question will result in a new trial.

It is uncommon for a juror to state they disagree with the verdict or that they have changed their mind when polled. However, they can be emboldened in open court to overcome pressure in the jury room.

You can move for a directed verdict or judgment as a matter of law anytime after the opposing party has presented their evidence or sooner on the grounds of party admissions (CPLR 4401). You can move for a mistrial anytime during the trial (CPLR 4402). You can also make these motions after the verdict within the same time frame as moving to set aside a verdict (CPLR 4404).

Failure to make out a prima facie case by the party with the burden of proof is grounds for judgment as a matter of law at trial.

Motions for judgment as a matter of law can also be for a directed verdict, judgment notwithstanding a verdict, or based on legally insufficient evidence. They require a showing of “no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.”

For a lack of informed consent claim in a malpractice action, the motion must be granted at the close of the plaintiff’s case if the plaintiff did not introduce expert evidence of the insufficiency of the consent (CPLR 4401-a).

To search this issue, select the keyphrase “Directed Verdict” and enter additional search terms to narrow the results.

Except for setting aside an inconsistent verdict, you have 15 days to move motions to set aside a verdict or for judgment as a matter of (CPLR 4405). However, the court can extend this time limit and consider an untimely motion at its discretion on a showing of good cause for the delay.

If you intend to bring the motion, it is common practice to ask the court for thirty to sixty days rather than making an oral motion. You can make only one written motion to set aside or for judgment as a matter of law which must contain all of your grounds for post-verdict relief (CPLR 4506).

Make Post-trial motions to the judge who presided over the trial. If that judge has resigned or died, it goes to a successor judge who will need the trial transcripts to decide the motion.

To search this issue, select the keyphrase “Set Aside Verdict” and put “untimely” as your search term.

You can set aside a verdict as against the weight of the evidence “where the evidence so preponderates in favor of the unsuccessful litigant that the verdict ‘could not have been reached on any fair interpretation of the evidence.’ “The evidence is always viewed in the light most favorable to the non-moving party (CPLR 4404(a)).

In the interest of justice is a broad category for setting aside a verdict or granting a mistrial for depriving a party of a fair trial (CPLR 4404(a); 4402). It can result from the court’s errors in admitting or precluding evidence, giving incorrect jury charges, prejudicial comments by the court or counsel, juror confusion, or anything that deprives a party of a fair trial. The court should consider “whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision.” 

A mistrial can result from any interest of justice consideration or where the jury cannot agree after a reasonable time as determined by the judge. 

To search this issue, select the keyphrase “Set Aside Verdict” or “Mistrial” and any search terms to narrow the results.