Preserving Error for Appeal

Rule 51(d)(1) turns the request and objection mechanics of this chapter into conditions of appellate review. A written request under Rule 51(a)(1) and an objection at the opportunity Rule 51(b)(2) provides decide whether a party may complain about the charge on appeal.¹ The rule treats the two kinds of instruction error differently:

For an instruction the court gave, the party must have properly objected.
For an instruction the court did not give, the party must have properly requested it and, unless the court rejected the request in a definitive ruling on the record, also properly objected.

On either branch, the appellate court asks what the party did at trial before it asks whether the instruction was wrong.

Appellate courts review what trial courts have done. Because they sit as courts of second resort, 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.² Rule 46 pared the working requirement to its essentials: it abolished the formal exception to a ruling, so a party need only state the action it wants or objects to, along with the grounds, and a party who had no opportunity to object when the ruling was made suffers no prejudice from its silence.³ Rule 51 supplies the opportunity. Before instructing the jury and before final arguments, the court must tell the parties its proposed instructions and its proposed action on their requests, and it must let them object on the record, out of the jury’s hearing, before the instructions and arguments are delivered.⁴ The judge can correct the charge most easily at that point, and the preservation rule makes a party’s use of that chance the price of complaining later.

The two branches differ because the two errors begin in different places. When the court gives a faulty instruction, the objectionable words already sit in the charge, and the party’s tool is the objection. When the court leaves an instruction out, the party’s part begins earlier, with the request, because a judge cannot be faulted for omitting language no one proposed. Whether a further objection is then needed depends on how definitively the judge had already ruled. The next two subsections take each branch in turn. Preservation is also only the first gate: a later section covers the narrow review available for unpreserved errors, and another covers the prejudice that even a preserved error must show before it justifies reversal.

Error in an Instruction Given

Rule 51(d)(1)(A) allows a party to assign as error “an error in an instruction actually given, if that party properly objected.”⁵ The word “properly” brings with it the requirements covered earlier in this chapter. The objection must appear on the record at the opportunity the court provides or, for a party given no advance notice, promptly after the party learns what the court did, and it must state the matter objected to and the grounds.⁶ An instruction that the party never challenged in that way is forfeited, whatever its merits.

Silence would cost the system three things, and the objection requirement answers each. It denies the judge a chance to repair the charge while repair is cheap. It gives the silent party a free option: a lawyer who hears a flawed instruction and says nothing can keep a favorable verdict and raise the instruction only after losing. The rule prevents litigants from making that tactical decision not to object in order to preserve a ground for appeal,⁷ and a strategic choice to avoid objecting is no excuse.⁸ Courts should not depart lightly from the rule’s strictures.⁹ Finally, silence leaves the reviewing court with nothing to read. A timely objection puts the complaint and the ruling in the transcript, so the appellate court reviews a decision the trial court actually made, and the opponent has notice and a chance to respond.¹⁰ An objection can even end the dispute before appeal: if the judge agrees and revises the charge and the objecting party wins the verdict, nothing remains to appeal.¹¹

The requirement presupposes a real opportunity to object. Rule 46 protects a party who had none, and the same concern appears when the jury sends the court a request. The court ordinarily informs all counsel of the request, hears arguments for and against granting it, and then decides what to do, and a failure to notify the attorneys and give them a chance to be heard before ruling may lead to reversal.¹²

Hypothetical Illustration

A skier sues a resort operator for injuries suffered on the slopes, and the operator defends on the ground that the danger was an inherent risk of skiing. At a charge conference held on the record, the judge says the jury will be told that the skier cannot recover if he knew of the risk. The operator’s lawyer states on the record that the instruction is wrong because inherent risks include risks the skier did not know about, and the judge overrules the objection. The charge is read as announced, the jury returns a verdict for the skier, and the operator appeals the instruction. The lawyer objected on the record, stated the ground, and did so at the chance the court provided, so Rule 51(d)(1)(A) is satisfied and the appellate court can reach the question whether the instruction misstated the law.

The transcript carries the weight on appeal. In one treatise’s account of a ski-resort appeal, the record appendix would likely include the docket entries, the pleadings, a transcript of the argument over the instruction (which shows that the operator’s counsel objected), a transcript of the instruction the judge delivered, the jury’s verdict slip, and the judgment.¹³ The argument transcript proves the objection, and the delivered instruction shows what the jury actually heard.

The usual trap is to treat the merits as the whole question, so that a lawyer who is right about the law assumes the appeal will follow.

Forfeiture is the failure to assert a right in time. Unlike waiver, which requires intentionally giving the right up, forfeiture can result from unintentional or unknowing conduct or omission.¹⁴ The loss is severe but not total. A court of appeals may, though it need not, consider a plain error in the instructions that was not preserved if the error affects substantial rights, but the exception is narrow and discretionary, and a later section takes it up in full.¹⁵ The plaintiff in the illustration cannot count on it to rescue a mistake that counsel saw and chose to let pass.

Failure to Give an Instruction

Rule 51(d)(1)(B) allows a party to assign as error “a failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a definitive ruling on the record—also properly objected.”¹⁷ The extra element follows from where the error sits. A faulty instruction leaves words in the charge that the party can point to. An omitted instruction leaves nothing to point to, so the complaint makes sense only if the party had already handed the court the language it now says was missing. In the ordinary case the rule therefore demands both a proper request and a proper objection, and it excuses the objection when the court has already refused the request in a definitive ruling on the record.

Each half of the rule has its own reason. The request requirement rests on the principle that a court cannot be faulted for leaving out what no one asked it to put in. A written request under Rule 51(a)(1) places exact wording before the judge and every other party.¹⁸ One appellate opinion explains the function of a written-request requirement: the trial judge must have the chance to examine the substance of the requested instruction in order to rule properly, and the reviewing court can then determine from the record whether the ruling was correct.¹⁹ Treat that opinion as an illustration of the reasoning; it does not control the reading of Rule 51. The objection requirement answers a separate problem. A party that asked for an instruction and then stayed silent while the judge read the charge invites the judge to assume the request was dropped. An objection at the point of omission gives the judge a last chance to reconsider before the jury deliberates. The exception for a definitive ruling follows from that reason: a judge who has already considered the request and refused it on the record has used that chance, and a repeated argument adds only delay.

The rule sorts a party into one of three situations, and the same omitted instruction can land in any of them depending on what the party did at trial.

The first situation is a party that never properly requested the instruction. In MacArthur, the plaintiff had not asked the trial court for instructions on one of her claims, and the court of appeals spelled out what that omission cost her.²⁰ Had she asked, the trial court might have included them and sent the claim to the jury. A favorable verdict would have left her nothing to appeal, and she might not have appealed at all, content with recovering on two of her claims. Had the court refused, it might have explained why, giving the court of appeals a fuller record and the defendants notice of her request.²¹ The rule’s text joins request and objection with “and,” so a party that skipped the request cannot repair the gap by objecting when the charge leaves the instruction out. The opinion on written requests adds that counsel is not excused from presenting a written request merely because the judge says in advance that he will not give the instruction.²² The definitive-ruling exception works the same way: it excuses the objection and leaves the request requirement in place. A party in this position has forfeited the point, which can happen through neglect as readily as through choice,²³ and only the narrow, discretionary plain-error review described in the next section remains.²⁴

The second situation is a party that properly requested the instruction and then heard the court refuse it in a way that settled the matter. The court must tell the parties its proposed action on their requests before it instructs the jury and before final arguments,²⁵ so a refusal ordinarily arrives before the charge is read. A judge who states on the record that the instruction will not be given has relieved the party of any need to object again when the charge omits it. The criminal counterpart to Rule 51, Fed. R. Crim. P. 30(d), produced an example. The defendants twice requested a “but for” causation instruction, and twice the district court rebuffed the request, saying it did not quite see how the government could prove “but for” causation beyond a reasonable doubt. The court of appeals held that the defendants had informed the court of their specific objection and its grounds and so preserved the error.²⁶ Because that case arose under a criminal rule, it works as an analogy. Its useful feature is a refusal that was explicit, reasoned, and repeated, which left nothing for a further objection to accomplish.

A record may instead show that the court’s decision to omit an instruction was never discussed.²⁷ Silence of that kind rejects nothing on the record, so it cannot be a definitive ruling, and the party who wanted the instruction still has to object. The rule does not define “definitive,” but the reason for the exception shows what the word must require. A ruling dispenses with a further objection because it has already finished the judge’s thinking about the request, so a comment that leaves the question open does not qualify.

Had the judge instead said that the evidence did not support a mitigation theory and that the instruction would not be given, the same request and the same silence would have been enough, because the court would have rejected the request in a definitive ruling on the record. The difference lies entirely in what the judge announced, which is why a fact pattern’s exact quotation of the judge’s words usually decides the question.

The third situation is a party that properly requested the instruction and received no definitive ruling. Here the rule requires an objection when the instruction is omitted. In one appeal, defense counsel had already filed eighteen requested instructions. After objecting to several instructions the court gave, counsel objected on the record to the failure to give others, identified the requests the court should have given by number, and offered two more.²⁸ The exchange shows the form an objection to an omission takes; it does not fix any deadline. The timing follows the same rule as for instructions given. A party informed in advance objects at the opportunity the court provides, ordinarily the charge conference, and a party not informed objects promptly after learning that the instruction was refused.²⁹

Preservation only opens the door to review. The omission complaint then wins only if the omitted instruction was accurate on the law, and in the Hardin ski-resort case an accurate charge meant explaining the elements of the negligence claim, the elements of the assumption-of-the-risk defense, the burden of proof on each party, and the state statute that separated the inherent risks of skiing from the resort’s duty to maintain its slopes.³⁰ Even a preserved complaint can fail when the charge already covered the issue. Accuracy, not specificity, is the critical question: where instructions accurately covered all the issues, the failure to mention particular aspects of a party’s contentions, such as the direction of the snow gun or the wetness of the snow, supports no finding of error. That is a different case from one in which the court failed to instruct on an entire issue or claim.³¹

Fact patterns tend to blur these three positions by saying only that counsel “asked for” an instruction. Sort out three facts: whether the request was a proper written request, whether the judge ruled definitively, and whether counsel spoke up on the record when the charge left the instruction out. Three mistakes recur. Treating an objection as a substitute for a request ignores the first requirement. Treating a request as enough in every case ignores the second requirement when the judge’s response was not final. Treating a definitive ruling as excusing the request overlooks that the exception reaches only the objection.

Exam Analysis Steps

The rule sorts a party by its own conduct, so the analysis follows that conduct in order. Work through these steps:

Ask whether the party properly requested the instruction, meaning a written request furnished to every other party within the time Rule 51(a) allows. If it did not, treat the instruction as forfeited; only plain-error review remains.
Ask whether the court rejected the request in a definitive ruling on the record, such as an explicit statement that the instruction will not be given. If it did, the error is preserved without a further objection.
If the court’s response was tentative, silent, or never given, ask whether the party properly objected when the instruction was omitted, on the record, stating the matter and the grounds, at the opportunity the court provided or promptly after learning of the omission.
If the party did not object in that way, treat the omission as forfeited and consider plain error only as a narrow, discretionary fallback.