The Jury Charge Correction and the Written Exhibit
On the fourth day of a personal-injury trial, the judge reads a 38-page jury charge at about 172 words per minute. At page 22, she says, “Strike the sentence beginning ‘The plaintiff must prove’; replace it with ‘The plaintiff must prove that the defendant’s conduct was a substantial factor.’” She then says, “I’m not going to read the last two paragraphs; they are in the written charge.” After the jury retires, defense counsel objects that the oral and written charges differ and asks you to “conform the transcript to the written charge, since that’s what the jury will have.” The written charge was marked as Court’s Exhibit 3 and given to the jury. During the charge, an attorney asked for a sidebar; the judge said, “No, we’ll take it up after the verdict,” and continued reading. The court’s deadline for filing the certified charge transcript is 5:00 p.m. tomorrow; you have 90 pages of proceedings to proofread.
1. How do you record the judge’s instruction to strike and replace a sentence, and how do you format the charge itself?
Read the worked answer
Record all spoken words in order. Do not delete the original sentence and do not create a clean charge that the judge never read. Use the speaker label “THE COURT:” and include the strike instruction as part of the colloquy, followed by the corrected version. A defensible format is: “THE COURT: … The plaintiff must prove [original sentence]. Strike the sentence beginning ‘The plaintiff must prove.’ Replace it with: ‘The plaintiff must prove that the defendant’s conduct was a substantial factor.’ …” The transcript must show the sequence the jury heard: original sentence, strike instruction, replacement. You may add a neutral parenthetical such as “(Whereupon, the sentence was stricken)” if it helps readability, but the spoken words remain. If the judge later clarifies on the record that the corrected version is the operative charge, record that clarification. The written charge is a separate exhibit; do not merge it into the oral charge. Never reconstruct a “perfect” charge from the written version, because the oral reading is what the jury heard and what may be reviewed on appeal.
2. Defense counsel asks you to conform the transcript to Court’s Exhibit 3 because the oral and written charges differ. Do you? What, if anything, do you tell the judge?
Read the worked answer
No. The transcript records the oral proceedings; the written charge is a separate exhibit. If the oral and written versions differ, that is a potential appellate issue, and the record must show both rather than hide the discrepancy. You may, at a break or after the jury retires, advise the judge on the record that the oral and written versions are not identical and ask whether she wants the record to note the discrepancy or have the written charge included. Do not communicate this privately in a way that favors one side, and do not alter the transcript because counsel asserts what the jury “will have.” If the judge orders the written charge included, attach or reproduce it as Court’s Exhibit 3 according to local rule. If counsel wants the transcript to say the written charge was read, refuse unless the record shows that it was read. Your certification is that the transcript is a true and accurate record of what occurred, not a harmonized version of what the parties wish had occurred.
3. The judge denied the sidebar during the charge. Must you record the request and denial? The attorney later says, “Put that in the transcript as an objection preserved.” How do you handle that?
Read the worked answer
Yes. The request for a sidebar and the judge’s denial occurred in open court during the charge, so record them verbatim. Do not label the request an “objection” if no objection was stated; record exactly what was said. If the attorney later makes an offer of proof or asks the judge to rule on a specific objection after the jury retires, record that proceeding and the judge’s ruling. You cannot declare an issue “preserved” for appeal; that is a legal conclusion for the judge or appellate court. Your job is to make the record complete, not to characterize it. If counsel asks you to insert the word “OBJECTION” where none was spoken, refuse and suggest that counsel make the objection on the record now, if the judge permits. The transcript may show counsel’s later request and the court’s response, but it may not invent an objection that did not occur.