Entitlement to Requested Instructions

Rule 51(a)(1) lets a party file written requests for “the jury instructions it wants the court to give.”¹ The verbs divide the labor: the party asks, and the court decides. Rule 51(b)(1) confirms the division by requiring the court, before it instructs the jury and before final jury arguments, to inform the parties of its proposed instructions and its proposed action on their requests.² A court that must announce what it will do with each request has a decision to make about each one, and a trial court has broad discretion over the form and content of the charge and is not required to accept the instructions the parties offer.³

Entitlement is therefore conditional. In Pierce v. Ramsey Winch Co., the court listed what a party needs before the court must instruct the jury on its theory of the case: the instruction must be legally correct, the theory must be supported by the evidence, and the request must be brought to the court’s attention in a timely manner.⁴ The preceding subsections covered timing. This section takes up the other two requirements and then a limit that applies even to a request that satisfies all three: the court may refuse it if the charge it gives covers the theory in substance.

Correct Statement of Law

Legal correctness heads the list in Pierce, and it is the one requirement a judge can test with nothing but the proposed words and the governing law.⁵ A request that misstates the standard the jury must apply fails that test, however promptly it was filed and however strongly the evidence points toward the theory behind it.

A dissent in Skidmore v. Led Zeppelin, reciting Ninth Circuit standards, states the requirement in fuller terms: instructions “must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading.”⁶ A dissent decides nothing for the court, so read the passage as a summary of earlier circuit decisions. Its last phrase looks to the effect of the words on the jury and not only to their literal truth. A sentence can be accurate in the abstract and still mislead if, on the facts of the case, it suggests that a rule settles an issue it does not reach.

Accuracy is also the standard by which the charge is reviewed afterward. A reviewing court will not set aside a verdict unless the instructions, viewed as a whole, inaccurately state the law or confuse or mislead the jury, and the error prejudiced the verdict loser.⁷ What accuracy demands depends on the case. In Hardin v. Ski Venture, Inc., a negligence suit against a ski resort that was governed in part by a West Virginia statute, accuracy meant explaining the elements of the plaintiff’s negligence claim, the elements of the resort’s assumption-of-the-risk defense, the burden of proof on each party, and the statute that distinguished the inherent risks of skiing from the resort’s duty to maintain its slopes.⁸

Because the trial court need not accept the parties’ instructions, the drafting burden stays with the party who wants one. The court has no duty to find the flaw in a request and repair it, and a judge who gave an incorrect instruction merely because a party asked would expose the verdict to the review just described.

Correctness alone does not decide the matter. The court in Pierce called one proposed instruction “undoubtedly a correct statement of the law” in light of Monsanto. That instruction told the jury that the mere fact that a manufacturer receives complaints about a distributor from other distributors or customers does not establish a combination, contract, or conspiracy under section 1 of the Sherman Act, even when termination follows. The opinion then sets out the charge the trial court actually gave.⁹ A correct request clears the first hurdle; it does not guarantee its own wording.

Bar questions built this way stipulate that the request was timely and that the evidence backed the theory, then describe wording that misstates the burden or an element. The answer is that the court need not give it, because the first requirement was never met and the party that wanted the instruction bears the cost of its own drafting error.

Support in the Evidence

The second requirement in Pierce is that the theory be supported by the evidence.¹¹ Correctness can be tested against the request and the governing law alone. This requirement asks whether the trial record gives the theory anything to rest on. A request can be flawless on paper and still fail, because the judge measures the theory against the testimony and exhibits the jury received, not against the pleadings or what counsel hoped to prove.

The Ninth Circuit’s formulation, as the Skidmore dissent recites it, states the entitlement from the requesting party’s side. A party is entitled to an instruction on its theory of the case “if it is supported by law and has foundation in the evidence,” and a district court errs when it “rejects proposed jury instructions that are properly supported by the law and the evidence.”¹² The operative word is foundation, which is less than proof. Whether the evidence persuades is the jury’s question, and the instruction exists so that the jury can answer it. The court asks only whether the record gives the theory a foundation.

A refusal on the other side of that line is not error. In Greenman v. Yuba Power Products, Inc., the California Supreme Court considered a manufacturer’s complaint that the trial court had refused three requested instructions. It stated that a trial court does not err in refusing requested instructions when their substance is adequately covered by those given or when an instruction is not supported by the evidence.¹³ The second ground controls here. Greenman is a state decision, so it illustrates the rule without binding a federal court.

The reason follows from what a charge is for. Instructions tell jurors which questions their findings must answer, and the evidence determines which questions are live. An instruction on a theory the record does not support invites jurors to deliberate on a question they have no facts to answer, and because it carries the judge’s voice, it may also suggest that the court considers the theory viable.

Hypothetical Illustration

A skier sues a resort for negligence. The resort files a timely, accurate written request on assumption of the risk, a defense that turns on whether the skier knew of the hazard and appreciated its danger. At trial the resort’s witnesses describe how the trail was groomed and when it was inspected, but none testifies that the skier knew of the hazard, and no sign, release, or admission on the point comes into evidence. The record gives the jury nothing from which to find knowledge, so the court may refuse the instruction however well it is worded. Had a resort employee testified that the skier read a posted warning about the hazard and said he understood it, the same request would rest on evidence from which a jury could find knowledge and appreciation, and the foundation requirement would be met.

Rule 51 gives the requesting party a chance to defend its theory before the instructions are delivered. The court must announce its proposed action on each request, and it must allow the parties to object on the record and out of the jury’s hearing.¹⁴ A party whose evidentiary foundation is in doubt therefore learns the court’s view while it can still speak, and the sections that follow explain how to use that opportunity.

Exam stems often confirm that the request was correctly worded and timely, then leave the record silent on the theory. A student who stops at accuracy and timing reaches the wrong answer. A theory pleaded in the complaint or answer but never developed through testimony or exhibits has no more foundation than one never pleaded, because a pleading states what a party expects to prove and the instruction depends on what the party proved. Even a theory with a solid foundation earns only its place in the charge, not the requesting party’s own words, as the next subsection explains.

Covered in Substance

A request that is correct, supported, and timely still does not guarantee its author’s words. Pierce adds that the court may refuse proposed instructions meeting those criteria if the charge it gives covers the theory in substance, because the judge, not the parties, controls the language and form of jury instructions.¹⁶ This limit completes the test. A party is entitled to have its theory reach the jury accurately; the phrasing belongs to the judge.

Two ideas sit inside the limit, and each has its own reason. Control over wording follows from who answers for the charge: the trial court need not accept the instructions the parties offer.¹⁷ Control also serves the jury. One commentary says courts must recognize the need for sets of instructions that are as short as possible, comprehensible by ordinary citizens, and set forth in a logical fashion so that jurors know what they are deciding.¹⁸ That goal is hard to reach if the court must read every correct request in its author’s words.

The second idea, the substance test, keeps the first from swallowing the entitlement. The question is whether the charge covers the theory in substance, so a judge cannot refuse a request merely because its wording differs. The judge must be able to point to language in the charge that conveys the same legal content. Greenman states the principle as a refusal being proper when the substance of the requested instructions is adequately covered by those given.¹⁹ A reviewing court asks the same question from the other side. As the Skidmore dissent recites, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was not fairly and correctly covered.²⁰

Hardin v. Ski Venture, Inc. shows a charge that covers a theory without echoing the party’s words. The plaintiff there wanted instructions that referred to specific contentions, such as the direction of the snow gun and the wetness of the snow. The court of appeals held that, where the instructions accurately covered all the issues in the case, the failure to reference those aspects of the plaintiff’s contentions could not support a finding of error, because accuracy, not specificity, is the critical question. The substance of the plaintiff’s theory, that the defendant failed to maintain the trail in a reasonably safe condition, had been conveyed to the jury. That he did not also receive more specific instructions “in the exact form he requested” was “no basis for throwing out the jury’s verdict.”²¹

The same opinion supplies a reason for leaving the level of detail to the trial judge. A court is not required to comment on specific evidence in instructing the jury and often is well advised not to, because such comments may carry unacceptable risks of removing from the jury its critical task of assigning weight to the evidence presented.²² The judge may comment, but the decision is the judge’s.

The limit has an edge, and the Hardin court marked it. It stressed that the case was not one in which the court failed to instruct the jury on an entire issue or claim presented by the plaintiff’s evidence, and it contrasted Carvel Corp. v. Diversified Management Group, Inc., a Second Circuit decision finding error in a failure to instruct on the implied duty of good faith.²³ General wording can carry a theory’s legal substance to the jury; silence cannot.

Hypothetical Illustration

A buyer sues a supplier over a late equipment delivery. The supplier files a timely, accurate written request telling the jury that a buyer who knowingly accepts late shipments without objection may waive the delivery deadline. The supplier’s witnesses testified that the buyer’s purchasing manager accepted two earlier late shipments and never complained, so the theory has evidentiary support. The court’s charge defines breach of contract, explains damages, and states the burden of proof, but it never mentions waiver or says anything from which jurors could learn that accepting late performance can excuse a deadline. The theory is not covered in substance, in general language or specific, so the judge cannot rely on this limit to refuse the request. Had the charge told the jury that a party may give up a contractual right by conduct showing it knowingly did so, refusing the supplier’s version would have been within the judge’s control over wording.

The inquiry here, whether the jury, reading the charge as a whole, received what it needed to decide the case, recurs in the sections on prejudice and harmless error below. On an exam, an accurate, supported, timely request followed by a general charge is testing this limit. The question to ask is whether the theory’s substance appears anywhere in the charge. If it does, the refusal is within the judge’s discretion. If the charge never reaches the theory, the limit offers no defense of the refusal.