Court's Advance Notice

Court's Advance Notice

Before the judge charges the jury, and before the lawyers make their final arguments, Rule 51(b)(1) requires the court to tell the parties two things: the instructions it proposes to give and what it proposes to do with their requests.¹ The parties' requests travel to the judge, and this duty sends information back. Only the judge knows how the requests will be resolved, and a party cannot respond to a plan it has not seen. The rule prescribes no format; the notice may come at a meeting between judge and counsel, as in the Skidmore account below.

The two disclosures do different work. The proposed instructions show the parties what the jury will hear. The proposed action on the requests shows each party what became of the instruction it asked for, and that matters because a refused request leaves no trace in the finished charge. A lawyer who saw only the instructions the court meant to give would have to hold the draft against that lawyer's own requests to find the gaps. With both disclosures, counsel can see what the charge will contain and what it will leave out. The word proposed marks the plan as provisional, and an objection can change only a plan that is still provisional.

The disclosure also gives counsel something to measure the charge against. In one case involving a snow gun, the court found no error where the instructions accurately covered all the issues but did not mention specific aspects of a party's contentions, such as the direction of the gun or the wetness of the snow.² The court contrasted that situation with one in which the judge fails to instruct on an entire issue or claim presented by the plaintiff's evidence. It added that a judge need not comment on specific evidence in an instruction and is often well advised not to, because such comment risks removing from the jury its task of weighing the evidence.³ A lawyer reading the court's proposal should therefore sort complaints into two kinds: an entire issue or claim is missing, or the charge says too little about the party's version of the evidence. Where the instructions accurately cover every issue, the second complaint cannot support a finding of error.

The rule fixes the notice deadline by reference to two events, and the two fit together because the court chooses when to deliver the charge. Rule 51 allows the judge to instruct the jury before final arguments, after them, or at both times.⁴ Because the notice must precede the instructions and the final arguments alike, it falls before whichever comes first. When the charge follows closings, the order is notice, closing arguments, then charge. Rule 51(b)(2) uses the same markers for the objection: the court must give the parties a chance to object on the record, outside the jury's hearing, before the instructions and arguments are delivered.⁵ Notice thus comes first and the opportunity to object second, and both come before the jury hears either side's final word. Counsel argue knowing how the court will treat the requests.

Notice makes the opportunity to object worth having. A party cannot sensibly object to a charge it has not seen, and a party that first hears an instruction as the judge reads it to the jury has lost the chance to ask for a change before the jury hears it. Advance notice gives the parties time to object to an instruction, or to the lack of one, while the court can still change the charge. A dissenting opinion in City of Newport v. Fact Concerts, Inc. explains why that chance matters. An objection, it says of the Rule's requirement, informs the trial judge in precise terms of any objections to proposed instructions and so gives the judge, in words borrowed from a First Circuit decision, “an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge.”⁶ The duty to disclose falls on the court because the court controls the content of the charge: the parties know what they asked for, but only the judge knows what the judge has decided to do with it.

The same principle of notice carries into deliberations. When the jury itself sends the court a request, the court in general informs all counsel, hears arguments for and against granting it, and then exercises its discretion. It may deny the request if granting it could mislead, for example by emphasizing one portion of the testimony that should not be considered out of context.⁷ A failure to notify the attorneys and give them an opportunity to be heard before ruling on the jury's request may lead to reversal.⁸

A dissenting opinion in Skidmore v. Led Zeppelin describes a meeting of this kind. Its account decides nothing here and serves only as a picture of the process. According to the dissent, Skidmore's lawyer commented on the wording of two instructions. When he raised the omission of an instruction on the inverse ratio rule, the court dismissed the question brusquely, saying the issue was not addressed “because we weren't giving that instruction,” and repeated, “[w]e're not going to give that instruction.” The judge then ended the meeting, and the decision to omit any selection and arrangement instruction was not discussed.⁹ Counsel learned the court's position on the inverse ratio instruction at the meeting itself, which is the information Rule 51(b)(1) exists to deliver. The account also shows how little back-and-forth such a meeting may involve.

On an exam, ask when the judge first revealed the plan. A judge who announces it at a conference before closings has met the duty, even though the jury hears no instruction until the lawyers finish; a judge who first reveals it while reading the charge has not. Two errors are common. One treats Rule 51(b)(1) as requiring the judge to instruct before closings, when the rule fixes only the deadline for notice and leaves the timing of the charge to the court.¹⁰ The other merges the notice with the opportunity to object, which Rule 51(b)(2) states as a separate duty: notice tells the parties what the court plans, and the opportunity to object lets them respond on the record, out of the jury's hearing.¹¹ What follows for a party that never receives notice is taken up in the later section on objecting without advance notice.