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Appeals court considers whether prior order was mischaracterized in jury instruction
Summary
In Marks v. Brooks the appellant argued the trial judge mischaracterized a prior injunction/order when instructing the jury (including implying a mutual order and status‑quo language), producing prejudice; appellee counsel said the instruction tracked the prior appeals‑court decision and was within the judge’s discretion.
Boston — The appeals court on Tuesday heard argument in Marks v. Brooks over whether the trial judge’s reading and paraphrase of a prior order to the jury misstated the underlying injunction and prejudiced the defendant.
Appellant counsel Howard D’Amico argued the trial judge did not simply read the prior order but paraphrased and added interpretive language — including status‑quo wording and references that suggested the order applied to both parties — and that the paraphrase was materially misleading and prejudicial to Ms. Brooks. D’Amico said the trial court could have read the order verbatim to avoid confusion and that counsel’s earlier objection should not be deemed waived when the trial court overruled objections and paraphrased the order.
Opposing counsel responded that the appeals‑court interpretation of the earlier contempt proceeding provided controlling guidance and that the trial judge’s paraphrase fell within ordinary discretion. Counsel for the appellee also noted the appellate record shows the earlier panel found the order sufficiently clear to support contempt proceedings and argued no frivolousness or prejudice resulted here.
The panel questioned whether the prior appeals decision (and a pending further‑appellate‑review petition at the time) precluded relitigation of the issues, and whether counsel’s failure to seek a curative instruction or to object again at sidebar constituted waiver. After extended questioning, the court took the matter under advisement.
