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SCO Files Its Objections to Novell's Jury Instructions/Witness List - Updated
Thursday, September 06 2007 @ 07:37 PM EDT

Of course, there are still more filings in SCO v. Novell, this time SCO's Objections to Novell's Proposed Supplemental Jury Instructions and Witness/Exhibit list:
451 - Filed & Entered: 09/05/2007
Docket Text: OBJECTIONS to Novell's Proposed Supplemental Jury Instructions filed by Plaintiff SCO Group. (Normand, Edward)

452 - Filed & Entered: 09/05/2007
Docket Text: OBJECTIONS to [382] Witness List(Proposed) (Novell's Second Amended Rule 26 Pretrial Disclosures) filed by Plaintiff SCO Group. (Attachments: # (1) Exhibit A)(Normand, Edward)

Novell filed its equivalent objections [PDF] yesterday with regards to jury instructions.

Update: Some have been asking what the right-hand column means on the Exhibit A. You'll see a lot of "Best evidence" listed. That is referring to the best evidence rule, meaning it's the basis for the objection. Let me refresh your memory on that:

You can find all the Federal Rules of Evidence here. Note that each rule has a number. You have to give a reason for objections, and that is what that right-hand column is doing. If you fail to object to a jury instruction, it can hurt you in an appeal, quite aside from naturally wanting the jury instructed favorably to your side. Here's an example, although in a patent context. The judge gives the parties the opportunity to file jury instructions and objections so as to help him formulate them in the most accurate way, but the parties can have a basis to appeal later if they think his final instructions, which he'll write in his own words, were in error.

So some of the language you see in the SCO filing isn't crazy off the map. I think, anyway, that it's setting up for the inevitable appeal. Here's a case where a court discussed jury instructions in its ruling. It's a Maine case, which isn't on point for Utah, but for our discussion purposes it will help you understand the overall point of jury instructions:

The purpose of objections to instructions is to assist the trial court in developing the most accurate and concise statement of the law possible for instructing the jury, rather than to preserve points on appeal. Where a party requests specific instructions and the court (1) explicitly refuses to give the requested instructions, and (2) indicates in an on the record discussion before instructions that the issue is preserved, the party's request and objection is preserved as a claim of error only if the issue addressed in the requested instructions is not contained in the court's instructions to the jury. See State v. Dumond, 2000 ME 95, 10, 751 A.2d 1014, 1017. Where, as here, specific instructions are proposed and the trial court generally covers the subject matter of the proposed instructions in its own language, a party must make a specific and focused objection after the instructions are completed and propose language to correct the perceived problem in order to preserve the issue for appeal.

I think you can discern that we have not heard the last of jury instructions in this case, not by a long shot. After the judge writes up the final jury instructions and reads them to the jury, we'll see more objections, I expect. Here is a case that talks a bit about the need to object to preserve the issue for your appeal:

Defendants argue Plaintiffs did not preserve their objection to Instruction 14 because Plaintiffs objected before, but not after, the court instructed the jury. See Smithv. Greyhound Lines Inc., 382 F.2d 190, 191 (10th Cir. 1967) (holding a party failed to preserve an objection to the jury instructions where the party objected prior to the court instructing the jury, but not after). Defendants argue we therefore should review Plaintiffs' claim for plain error. Smith relied on Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681 (10th Cir. 1966) for its holding. But Dunn did not require a party to object immediately before deliberations. See Dunn, 370 F.2d at 684 (stating that while the Court would "not say that an objection may never be properly preserved to a charge in advance," the objecting party must object with "sufficient specificity and distinctness"). Federal Rule of Civil Procedure 51 was amended after Smith specifically to allow pre-instruction resolution of objections to the instructions. See Fed. R. Civ. P. 51 advisory committee's note (1987). Plaintiffs sufficiently preserved their objection to Instruction 14 by objecting at the instruction conference and specifically stating as grounds for the objection that the ATV was an implement of husbandry legally on the road. See Fed. R. Civ. P. 51 (party must object to an instruction "before the jury retires to consider its verdict"); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 n.5 (10th Cir. 1998) (plaintiff's objections at pretrial and instruction conferences sufficient to preserve issue); Abercrombie v. Osteopathic Hosp. Founders Ass'n, 950 F.2d 676, 679 (10th Cir. 1991) (plaintiff properly preserved pre-instruction objection by making clear which instruction was at issue and the grounds for objection). Consequently, we do not review this objection to Instruction 14 for plain error. Instead, we apply the usual standards in a diversity case....

"When considering a party's challenge to jury instructions, our initial inquiry is whether the party properly preserved that issue for appeal by objecting at the district court level to the instruction on the same grounds raised on appeal." Comcoa, Inc. v. NEC Tel., Inc., 931 F.2d 655, 660 (10th Cir. 1991); see also Fed. R. Civ. P. 51 (party objecting to a jury instruction must state "distinctly the matter objected to and the grounds of the objection"). A party's stated grounds for objection to a jury instruction must be "'obvious, plain, or unmistakable.'"...

Defendants did not raise Plaintiffs' failure to object on these grounds in Defendants' appellate brief. Plaintiffs argue Defendants have waived the issue, and we therefore should review this matter de novo. We decline to ignore Plaintiffs' failure to object on this ground before the district court. A properly stated objection puts the district court on notice that it may be committing error, and gives the district court an opportunity to correct that error. Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999). Plaintiffs' failure to bring this matter to the district court's attention denied the district court this opportunity. Assuming Plaintiffs are correct that the district court should not have given Instruction 14, we would have to remand for a new trial on apportionment of comparative fault. Rule 51 "was designed to prevent unnecessary new trials caused by errors in jury instructions that the district court could have corrected if timely brought to its attention." Reynolds v. Green, 184 F.3d 589, 595 (6th Cir. 1999); see also Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir. 1995) (failure to object "leaves open the possibility of a lengthy and expensive retrial"). Remand also would give Plaintiffs a second bite at the apple based on their own failure to act. See Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 771 (8th Cir. 1998) ("The purpose of Rule 51 is . . . to prevent the losing party from obtaining a new trial through relying on a possible error in the original trial.") ... Because Plaintiffs did not raise this argument before the district court, we review Plaintiffs' proximate cause argument for plain error. Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999). We will reverse under the plain error standard only in exceptional circumstances "where the error was patently plainly erroneous and prejudicial."

Once again, here are the Utah model jury instructions. And here's a Utah case before the 10th Circuit Court of Appeals, USA v. Wiktor where the appeal was based in part on what one party thought were flawed jury instructions. Here's another. Paralegals often draft jury instructions, by the way.

Even a state's model jury instructions can be appealed. Here's a Supreme Court ruling from January in Norfolk Southern R. Co. v. Sorrell, where that happened. Uh oh. Are you thinking what I'm thinking?

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