Concept
Making a Proper Objection
Requests for and objections to jury instructions
Making a Proper Objection
Rule 51(b) puts two duties on the court. Before it instructs the jury and before final jury arguments, the court must tell the parties which instructions it proposes to give and how it proposes to act on their requests. It must also give them an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered.1 Those duties create an occasion for an objection; they do not produce one. Rule 51(c) tells a party what to do with that occasion if it wants to complain later about an instruction that was given or one that was refused. The two halves fit because the court alone knows its plan and can change the charge, while each party alone knows which parts of the plan it thinks are wrong. An objection carries the second kind of knowledge to the first, and Rule 51(c) says what the message must look like and when it must arrive.
Rule 51(c) sets two requirements, and a party must meet both. The first is form: the party objects on the record and states distinctly the matter objected to and the grounds, so that the judge knows what to fix and why and a reviewing court can see what the judge was asked to do. The second is timing, and the version that applies depends on what the court did under Rule 51(b). A party told of the proposed instruction, or of the proposed action on a request, before the jury was instructed and before final arguments must object at the opportunity the court provides, which in practice is the charge conference. A party not told in advance must object promptly after learning that the instruction or request will be, or has been, given or refused.2
| What the court did under Rule 51(b) | When the party must object | Rule |
|---|---|---|
| Informed the party in advance and gave an opportunity to object | At that opportunity, ordinarily the charge conference | 51(c)(2)(A) |
| Did not inform the party before the time for objection | Promptly after learning of the instruction or the ruling on the request | 51(c)(2)(B) |
The timing rule has two paths because each path ties the party’s duty to the information the party actually has. A party that heard the court’s plan has everything it needs to object when the opportunity comes, and letting it wait would let it hold an objection in reserve while the court proceeds on a charge the party privately thinks wrong. A party kept in the dark has nothing to object to until it learns what the court did, so the rule asks only that it speak promptly once it knows. On either path the objection must reach the judge while the court can still act on it, which is why the rule places the notice and the opportunity before the instructions and arguments and not after the verdict.
Exam stems often blur the two requirements by describing a lawyer who complained about an instruction in some manner at some point in the trial. The answer then turns on three questions: was the complaint on the record, did it say distinctly what was wrong and why, and did it come at the right moment? The first two belong to the next subsection, and the third occupies the two after it.
Form of the Objection
Rule 51(c)(1) sets the form: a party who objects to an instruction, or to the failure to give one, must do so on the record, stating distinctly the matter objected to and the grounds of the objection.3 Rule 51(b)(2) obliges the court to supply the opportunity to object,4 and Rule 51(c)(1) tells the party how to use it. The text has three parts: the objection is recorded, it identifies the matter objected to, and it states the grounds. Because the rule reaches the failure to give an instruction as well as the giving of one, the matter in an omission case is the instruction the party wanted and did not get.
The first part makes the objection reviewable. The ordinary rule is that, absent exceptional circumstances, a party may not raise on appeal an error it did not first ask the trial court to correct.5 Applying that rule takes a transcript that shows what the party asked for and how the judge answered. The court reporter records both the objection and the ruling, so the appellate record in an instruction dispute ordinarily includes the transcript of the argument over the instruction, which shows that counsel objected.6 A word with the clerk, or an exchange that no one transcribes, leaves the reviewing court nothing to read. No ritual words are needed. Rule 46 abolished the formal exception, and a party need only state the action it wants the court to take, or objects to, along with the grounds.7
The other two parts divide the work of informing the judge. The matter objected to tells the judge where to look, whether that is a whole instruction, a sentence within it, or a requested instruction the draft leaves out. The grounds tell the judge what is wrong with that text, so the judge can decide whether to agree and how to repair it. A judge who knows the matter but not the grounds can see that someone dislikes the wording, yet cannot tell whether the complaint concerns accuracy, emphasis, or omission. A judge who hears a reason without being told which text it concerns must guess at the target. As one opinion explained, an objection made in this way informs the trial judge “in precise terms” of the complaint and gives the judge “an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge.”8
Because the objection exists to let the judge act, distinctness is a matter of function: the objection must be clear enough that the judge can understand it and rule on it. A clear objection leads somewhere useful. The judge may agree and revise the charge, which ends the dispute. Or the judge may deny the point and say why, which gives the court of appeals a fuller record, and either way the opposing party learns what is being claimed and can respond.9 Evidence law runs on the same logic. An objection to evidence must specify its grounds well enough to identify the issue, and one that does not lets the appellate court affirm on any conceivable rationale.10
The most common ground is that the instruction misstates the law. Instructions must be accurate on the law, which in Hardin meant explaining the elements of the plaintiff’s claim, the elements of the defendant’s assumption-of-the-risk defense, the burden of proof on each party, and the substance of a special statute that bore on the dispute.11 An objection that points to the misstated element, burden, or statute hands the judge a text to check.
A well-formed objection looks different. The facts below are invented for teaching; they borrow only the kind of statute that Hardin involved.
Each part of the rule appears in that exchange. The matter is one specific instruction, identified by number. The grounds are a specific point of law that the judge can test at once by reading the statute against the instruction. The transcript preserves both the objection and the ruling, so the appellate record can include the argument that shows counsel objected.12
The same form works for an omission. In one reported case, the defendant, Ramsey, objected to several instructions the court had given and then objected to the failure to give others, pointing by number to the written requests it had already filed and offering two more.13 Naming an omitted instruction by its number in a written request already before the court is an efficient way to state the matter objected to, because it sends the judge to exact text. The passage shows the shape of an objection to an omission.
Exam stems usually test form by describing a lawyer who said something on the record at the right moment and asking whether it was enough. Three questions settle it. Is there a transcript of the objection? Does the statement identify the instruction, or the omitted instruction, at issue? Does it say what is wrong? A blanket objection to the charge, or an announced exception to all of it, fails the second and third questions and preserves nothing identifiable, however well timed it was. Timing is a separate requirement, taken up next, and an objection must satisfy both.
Timely Objection at the Charge Conference
Rule 51(c)(2)(A) answers the timing question for the ordinary case, in which the court has disclosed its plan before the charge. An objection is timely if a party “that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments, as provided by Rule 51(b)(1),” objects “at the opportunity for objection required by Rule 51(b)(2).”15 The text joins three events that earlier sections treated separately. The court’s notice under Rule 51(b)(1) tells the party what the court proposes to do. The court’s duty under Rule 51(b)(2) supplies an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered. Rule 51(c)(2)(A) then requires the party to use that opportunity when it comes.16 The court’s own procedure thus sets the party’s deadline, and the deadline arrives when the court offers the chance to speak.
In practice that moment is the charge conference, held outside the jury’s hearing, at which the judge announces which instructions will be given and which requests will be refused. A party who stays silent there and objects later, whether after the charge is read or after the verdict, misses the opportunity the rule names. Timing and form are independent requirements. An objection that states its matter and grounds distinctly is still late if it comes after the conference, and a prompt objection that says only “we object to the charge” fails on form.
Each element of the trigger has its own reason. Being informed gives the party something to object to, since no lawyer can challenge language that has not been disclosed. The opportunity gives the party a fair moment to speak, so the penalty for silence falls only on a party that had both the information and the chance. The conference is also the cheapest moment for the court to act. The charge is still a draft, and correcting a sentence costs a few minutes of rewriting, whereas the same correction after the jury has heard the charge means recalling the jurors or trying the case again. Finally, the deadline removes a tactic that silence would otherwise offer. A lawyer who hears the plan, thinks it wrong, and says nothing could accept a favorable verdict without mentioning the error and raise it only after a loss. Strategic choices to avoid an objection at trial are not a valid excuse for failing to object,17 and the objection requirement exists so that the trial court gets the first chance to correct its own error.18
Elgabri v. Lekas shows the failing side under the earlier text of Rule 51, which required the objection before the jury retired. Appellant’s trial counsel voiced no objection to the instructions before the jury retired. The court acknowledged that the phrasing of the district court’s inquiry may have fostered a belief that little could be gained by objecting then, yet it held that counsel was obligated to object in the manner Rule 51 required, because complying with the rule’s strict requirements is the duty of trial counsel as well as the trial court.19 Two lessons carry into the current rule. Courts hold counsel to the timing the rule sets even when the judge’s own words made an objection look futile. And a missed deadline does not end all review: unpreserved objections to instructions that affect substantial rights are reviewed for plain error, a topic taken up later in this chapter.20
The deadline itself does not carry over. Under the earlier text, a lawyer who stayed quiet at the conference could still object after the charge was read, so long as the jury had not yet retired.21 Rule 51(c)(2)(A) moves the deadline forward to the opportunity the court must give before the instructions and arguments are delivered. A lawyer who hears the court’s plan, says nothing at the conference, and raises the point only after the charge, or for the first time in a post-verdict motion, therefore fails the current test. An exam stem that treats the jury’s retirement as the deadline is applying the older rule. The usual way to lose the point is to stop reading at the moment the objection was made without asking where that moment fell in the sequence of notice, opportunity, charge, and closings.
Ellis v. City of Chicago presents the party’s excuse from the other direction. The plaintiffs argued that they had no adequate opportunity to object, but 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 rejected the argument.22 The excuses in the two cases differ. In Elgabri the judge’s phrasing was said to have discouraged an objection, and in Ellis the claim was that no chance had been given, yet each court held the party to the opportunity the record showed. Ellis also illustrates the change in timing. The invitation there came after the charge, which is later than the opportunity Rule 51(b)(2) now describes, an opportunity that must come before the instructions and arguments are delivered.23 What a party must do when the court supplies no earlier opportunity is the subject of the next subsection.
Objecting Without Advance Notice
Rule 51(c)(2)(B) supplies the second path to a timely objection, and it is written for a party the court never told what the charge would contain. An objection is timely if “a party that has not been informed of an instruction or action on a request before the time for objection provided under Rule 51(b)(2) objects promptly after learning that the instruction or request will be, or has been, given or refused.”25 The clause mirrors the one in the preceding subsection. There the court had disclosed its plan, so the party had to object at the charge conference. Here the party was told nothing before that opportunity, so the clock starts at the moment the party learns what the court has done or is about to do. The text reaches both an instruction the court gives and a request the court refuses.
The reason for a fallback lies in the structure of Rule 51(b). The court, and not the parties, must disclose its proposed instructions and its proposed action on the requests before the charge and the final arguments, and it must give an opportunity to object on the record before the instructions and arguments are delivered.26 The deadline in clause (A) depends on those two court duties, so when the court skips one of them, that deadline has no occasion to run. Forfeiting an objection the party never had a chance to make would penalize the party for the court’s omission, and a party cannot be accused of holding back an error it did not yet know about. The general rule on rulings points the same way, because failing to object “does not prejudice a party who had no opportunity to do so when the ruling or order was made.”27
What the fallback keeps is the purpose of the objection, which is to let the trial court correct a claimed error while it still can.28 The rule sets no number of minutes, so promptness is measured from the moment of learning against the opportunity the party then had to tell the judge. A lawyer who hears an omission as the charge is read, and who can approach the bench while the jurors are still in the courtroom, has such an opportunity. Waiting for the verdict wastes it, because the remedy that was cheap then, a short corrective instruction, has become a retrial.
The fallback arises in two ordinary settings. In the first, the court holds no conference, or holds one that leaves out some instruction or some request, and the party first learns of the gap when the charge is read. In the second, the court adds an instruction after the charge has been settled, most often in answer to a note from the jury during deliberations. The usual practice with a jury question is for the court to inform all counsel and hear their arguments before it acts, and a failure to notify the attorneys and give them a chance to be heard before ruling may lead to reversal.29 Counsel who is brought into that exchange can object within it. Counsel who learns of the court’s answer only as it is delivered falls within the text of clause (B).
What separates those two scenes is what counsel did once the information arrived, and clause (B) places the party’s whole responsibility there. The fallback also has limits. It protects only a party that was not informed, so a party that heard the court’s plan before the instructions and arguments, and had the opportunity to object, is governed by clause (A), and promptness later does not rescue an objection that was due at the conference. The form requirement also continues to apply, because an objection under clause (B) must still be made on the record and must state distinctly the matter objected to and the grounds.30
On an exam, the first question is whether the party was informed of the instruction, or of the court’s action on its request, before the opportunity to object. If it was, the objection was due at the charge conference. If it was not, the question becomes when the party learned and what it did next, and the answer is judged by whether the objection followed the learning promptly.