Concept
Requesting Instructions
Requests for and objections to jury instructions
Requesting Instructions
A party gets its proposed charge before the judge by filing written requests. Rule 51(a)(1) sets the window: at the close of the evidence, or at any earlier reasonable time the court orders, a party may file written requests for the jury instructions it wants and furnish them to every other party.1 That sentence imposes three requirements. The requests must be written, so the judge and the opposing parties can read the exact words proposed. They must reach every other party, so no side has to guess what its opponent will ask the jury to hear. And they must arrive on time, which means by the close of the evidence unless the judge has set an earlier reasonable date.
The deadline matters because the requests drive what follows. Before instructing the jury and before final arguments, the court must inform the parties of its proposed instructions and its proposed action on their requests,2 and a party who objects to an instruction, or to the failure to give one, must say so on the record before the court instructs.3 The court can act only on requests it holds, and the parties can object only to a plan they have seen. A request that surfaces after the judge has settled the charge forces the court to reopen finished work, which is why the rule ties filing to a fixed point in the trial.
A filed request secures a hearing, not an instruction. A trial court has broad discretion over the form and content of the charge and need not accept the instructions the parties offer.4 A court need not even comment on specific evidence in an instruction, and often is well advised not to, because such comment risks taking from the jury its task of assigning weight to the evidence.5 What a party must show to be entitled to a particular instruction is the subject of a later section; this one asks only when and how a party may ask.
Three subsections follow. The first covers the default deadline and the judge’s power to move it earlier. The other two cover the exits Rule 51(a)(2) gives a party that has missed the deadline: one that needs no permission but reaches only issues no one could reasonably have foreseen, and one that reaches any issue but depends on the court’s leave. Each exit has its own conditions, and the two should be kept apart.
Timing of Requests
Rule 51(a)(1) names two moments for filing written requests: “at the close of the evidence or at any earlier reasonable time that the court orders.”6 The first is the default; the second belongs to the judge. Once the judge announces an earlier date, the close of the evidence is no longer a safe harbor, and the requests must still be written and furnished to every other party.
Earlier dates are common. Judges often expect to receive instructions before trial even begins,7 and many requests start from pattern instructions, the ones a jurisdiction has formally approved as correct. Some places make them mandatory on certain issues, and lawyers use them even where they are not mandatory because they will not result in reversal.8 The two timing options serve different interests. A request drafted at the close of the evidence can fit the issues that survived the testimony. An earlier deadline lets the judge read and compare each side’s wording and settle the charge deliberately instead of composing it while the jury waits. A party that files early gives up some of the benefit of seeing the evidence first, which is why Rule 51(a)(2), taken up in the next two subsections, offers ways to file after the time has passed.
The writing requirement does more than tidy the file. A dissent in Rittenour v. Gibson, applying North Dakota’s counterpart to Rule 51, shows why. The trial court had ordered written instructions by a set date, and just before the case went to the jury the defendant asked orally for an instruction on a tenant’s duty to warn a social guest. The dissent relied on court’s earlier decision explaining that a judge must be allowed to examine the substance of a requested instruction in order to rule on it properly, and that a reviewing court can judge the correctness of the ruling only if the written request is in the record.9 An oral request on the eve of the charge serves neither purpose. Because the reasoning comes from a state dissent applying its own rule, it explains why the requirement exists; it does not state federal law.
Weinstein v. Prudential Prop. & Cas. Ins. Co. shows the cost of ignoring a deadline. Idaho’s counterpart rule required requests five days before trial and let the court permit later ones, up to the close of the evidence, on the grounds that they concerned matters arising during trial that could not reasonably have been anticipated or that were overlooked in the original requests.10 Liberty Mutual submitted its proposed instruction on the day it rested and argued neither ground, so it failed to show that the trial court abused its discretion in refusing the request as untimely.11 Idaho’s default (five days before trial) differs from the federal one, but the lesson carries over: a party that misses the court’s deadline needs a reason the rule recognizes, and filing on the day it rests supplies none.
Set that filing beside the one rejected in Weinstein, and the difference is the calendar: one reached the court by the date the court had set, and the other arrived on the day the party rested with no ground the rule recognizes. Timing problems resolve cleanly when taken in order.
Unanticipated Issues
Rule 51(a)(2)(A) gives a party that missed the court’s deadline a first route back in: after the evidence closes, it may file requests for instructions on issues that “could not reasonably have been anticipated by an earlier time that the court set for requests.”13 The text attaches no condition of court approval, so a party whose request fits the description files as of right, and the only contested question is whether the description fits. Two phrases do the work. The issue must be one that could not reasonably have been anticipated, and the measuring point is the earlier time the court set for requests, not the day the party sat down to draft.
The exception follows from how a deadline works. A pretrial deadline for requests is set before the evidence is in, so it asks each party to predict which instructions the trial will call for. That demand is fair as to issues the pleadings, disclosures, and pretrial planning had already placed in the case. It is unfair as to an issue that came into being only as the trial unfolded, because no amount of care could have produced a request for it by the deadline. The exception removes that unfair part and nothing more. If forgetting qualified, every deadline would dissolve into the close of the evidence, and the judge would again compose the charge at the last minute.
The word “reasonably” sets the standard from the outside. The question is not whether the particular lawyer was in fact surprised, but whether a careful party in that position, reading the pleadings, the disclosures, and the pretrial order, would have foreseen the issue by the court’s earlier date.14 Surprise can be entirely sincere and the issue still foreseeable. A theory the complaint pleaded on its face is anticipated even if no one thought to draft an instruction about it. Timeliness is also all this route supplies. A request that qualifies under (A) is properly filed, but whether the court must give it depends on the entitlement requirements taken up in a later section.
That request qualifies because the trial itself produced the issue. The deadline asked each side to predict, and nobody could have predicted testimony that appeared nowhere in the papers. The court loses nothing by receiving the request after the evidence closes, since it could not have received it earlier.
The Idaho rule applied in Weinstein shows how a state analog frames the same idea. It let the court permit late requests for matters arising during trial that could not reasonably have been anticipated, and it listed matters overlooked in the original requests as a separate ground.15 Two differences from the federal text matter. Idaho made late filing depend on the court’s permission, while clause (A) needs none; and clause (A) has no “overlooked” ground. The separate listing confirms that forgetting and unforeseeability are different things, and Liberty Mutual, which filed on the day it rested and claimed neither ground, lost.16
An exam stem about a lawyer who missed the deadline and files after the evidence closes is asking whether the issue was foreseeable at the deadline, not whether it was inconvenient to ask earlier. A request for an instruction on an affirmative defense pleaded in the answer is the usual example of one that fails. The defense was in the case on the first day, so a party that simply forgot must look to the court’s permission instead. A causation theory that surfaced for the first time in the opponent’s expert testimony passes, because no earlier deadline could have captured it.
Untimely Requests by Permission
Rule 51(a)(2)(B) gives a party that has missed the deadline a second way back in: with the court’s permission, it may file untimely requests for instructions on any issue.18 The breadth of that phrase separates clause (B) from clause (A). Under (A) a party files as of right but must show that the issue could not reasonably have been anticipated by the court’s earlier deadline. Under (B) the party need show nothing about foreseeability, so an issue pleaded from the first day and simply overlooked is eligible, yet the party cannot file until the judge agrees. Each clause gives up one thing to gain the other: (A) accepts a narrow category of issues in exchange for freedom from permission, and (B) accepts the need for permission in exchange for freedom from the category.
A door that opens even for a party’s own lapse makes sense because a correct instruction offered late still helps the jury decide on the right legal footing, and a rule that barred every late request would sometimes force a charge on an incomplete statement of the law merely to penalize an oversight. Lateness still costs the judge and the opposing side, who must evaluate unfamiliar language on short notice, often while the jury waits. Conditioning acceptance on permission lets the judge weigh the value of the proposed instruction against that disruption.
Permission is discretionary, and the rule’s text supplies no standard that forces a yes. A request the judge declines to receive stays out of the case, however sound its wording. Even a request the judge accepts does not bind the court to give the instruction, because a trial court has broad discretion over the form and content of the charge and need not accept the instructions the parties offer.19 Permission buys a hearing; a later section takes up what the instruction must then show.
Review of a refusal is deferential. In Weinstein the Idaho court asked only whether the trial court had abused its discretion in rejecting a request filed on the day the party rested, and it found no abuse because the party invoked neither ground the Idaho rule recognized.20 The Idaho text attaches conditions to permission that the federal clause lacks, so the case does not tell a federal judge how to use clause (B). It does show that a party offering no reason for lateness gets no help from the appellate court.
Where counsel files late on a foreseeable issue, the analysis runs in two steps. First, does clause (A) apply? It does not if the issue was apparent from the pleadings. Second, did the court give permission under clause (B)? If the judge refused, or the party never asked, the court may decline to consider the request, and the party cannot complain that the court had to accept it.