Opportunity to Object

Opportunity to Object

Rule 51(b)(2) requires the court to give the parties "an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered."¹ The provision completes the sequence begun by Rule 51(b)(1), under which the court must first inform the parties of its proposed instructions and its proposed action on their requests, before it instructs the jury and before final jury arguments.² Notice tells counsel what the court intends to do; the opportunity to object lets counsel answer it. Three conditions define that opportunity, and each does separate work: the objection is made on the record, out of the jury's hearing, and before the instructions and arguments are delivered.

The record condition ties the opportunity to preservation. Appellate courts review what the trial court did, and absent exceptional circumstances a party may not raise on appeal an error it did not first ask the trial court to correct.³ A reviewing court can apply that rule only if a transcript shows what the party requested and how the judge answered; an unrecorded conference leaves the court to choose between competing memories. What the objection must say is a separate question for a later section. The general rule on objections asks a party to state the action it wants the court to take, or the action it objects to, along with the grounds.⁴ The court's part is to supply an occasion on which that statement can be made and recorded.

The jury's absence keeps the dispute away from the jurors. The rule says only that the objection is made out of the jury's hearing, but the evident purpose is to let counsel and the judge argue over the wording of a charge the jurors have not yet received, without the jurors hearing language the court may reject or watching a lawyer contest the judge's plan. Sending the jury out for the conference, or holding it in chambers, confines what jurors learn about the law to the charge the court finally gives.

Timing has the largest practical effect. Because the opportunity comes before both the instructions and the final arguments, an objection can still reach the charge before the jury hears it, and counsel can still build the closing around the law the jurors will actually receive. The sequence is notice, then the opportunity to object, then arguments and charge.⁵ An error caught at that stage can be repaired before delivery. An error caught after the jury has heard the charge can be addressed only by correcting what the jurors have already been told.

Objections at the conference usually target the accuracy of a proposed instruction or the court's handling of a request. Instructions must be accurate on the law, so a misstatement of the elements of a claim or defense, or of the burden of proof each party carries, is a standard ground.⁶ A party who wants the charge to point the jury to specific evidence has a harder case, because a court is not required to comment on specific evidence and often is well advised not to; comments of that kind risk taking from the jury its task of assigning weight to the evidence.⁷

Judge Alvarez satisfied all three conditions: the objections were recorded, made outside the jurors' hearing, and raised while the charge could still be changed. Judge Brandt's invitation came after the charge and while the jurors were still present, so it fails the timing and out-of-hearing conditions whether or not a reporter took it down. The mistake to avoid on an exam is treating the opportunity as satisfied whenever the judge asks for objections at some point in the trial. Test each scene against the three conditions.

A party denied the opportunity is not penalized for missing it. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made.⁸ That safeguard is why it matters whether the court actually supplied the opportunity. What follows from a missed or withheld one, including when a late objection remains timely, belongs to the later sections on making a proper objection and preserving error.

Several decisions in this area applied an earlier version of Rule 51, which provided that no party may assign as error the giving or the failure to give an instruction unless he objects before the jury retires to consider its verdict.⁹ That text set the deadline at the end of the process, while the current text requires the opportunity at the front, before the instructions and arguments. The older cases remain useful for why courts insist on the objection and how strictly they hold counsel to it, but they do not set the current timing.

On strictness, Elgabri v. Lekas is the clearest example. Trial counsel voiced no objection before the jury retired. The court acknowledged that the phrasing of the district court's inquiry may have led counsel to think little could be gained by objecting then, but it said counsel was still obligated to object in the manner Rule 51 requires. It added that complying with the rule's strict requirements is the obligation of trial counsel and the trial court alike.¹⁰ In Ellis v. City of Chicago, the excuse was different, that the plaintiffs had no adequate opportunity to object, and the result was the same. The record showed that the trial judge invited objections from both parties after charging the jury and before deliberations began, and neither party spoke, so the court found the contention without merit.¹¹ Under the earlier text, an invitation after the charge could supply the opportunity. Under Rule 51(b)(2), the same invitation would come too late, because the opportunity must precede the instructions and the arguments.

In City of Newport v. Fact Concerts, Inc., a dissenting opinion describing the earlier rule explained that it prevents litigants from making the tactical decision not to object to instructions at trial in order to preserve a ground for appeal, and that courts should not depart lightly from its strictures.¹² A dissent decides nothing, but the point fits the current rule as well. A lawyer who could stay silent through the charge conference and attack the instruction after losing would hold a second chance at the verdict that the opponent never received. A recorded objection before the charge is delivered closes that option and gives the trial court the first opportunity to correct its own error, which is the premise of the preservation rule.¹³