When will a judge order counsel to provide counsel with special interrogatories on the alternative theory of contractual liability?

The decision not to supply counsel with the special interrogatories before summation rested within the district court's broad discretion. See Cramer v. Hoffman, 390 F.2d 19, 23 (2d Cir. 1968). However, contrary to the ruling below, we believe that defendants were severely prejudiced by their inability to review the special interrogatories prior to summation. It is clear that the alternative theory of contractual liability, first articulated on the seventh day of trial, created considerable confusion for both counsel and the district court. The difficulty in defining the issues on the eve of submitting the case to the jury is one factor which persuades us that the district court should have supplied counsel with the special interrogatories before summation.