In search of consistency: Jury instructions under rule 51 of the Federal Rules of Civil Procedure

Iowa Law Review

Volumn 83, Issue 2, 1998, Pages 471-497

  Young, Christopher A ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 26244439546     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (213)

1. See The Rules Enabling Act, Act of June 19, 1934, ch. 651, 48 Stat. 1064 (codified as amended at 28 U.S.C. §§ 331, 2071-77 (1994) (delegating to the Supreme Court the power to promulgate rule of procedure for civil actions at law)).
2. See Peter G. McCabe, Renewal of the Federal Rule Making Process, 44 Am. U. L. Rev. 1655, 1658 (1995) (providing a historical background for the creation of federal rule making powers).
3. Peter G. McCabe, Renewal of the Federal Rule Making Process, 44 Am. U. L. Rev. 1655 (1995) Id.
4. See Order of June 3, 1935, Appointment of Committee to Draft Unified System of Equity and Law Rules, 295 U.S. 774 (1934) (charging committee to "prepare and submit to the Court a draft of a unified system of rules as . . . described").
5. See Palmer D. Edmunds, Federal Rules of Civil Procedure at iii (1938) ("Perhaps no event in history will serve to refute more conclusively the impression, apparently existent in some quarters, that the legal profession is opposed to salient reforms, than the promulgation of the Federal Rules of Civil Procedure for the District Courts for the United States").
6. Rules of Civil Procedure for the District Courts of the United States: Hearings on H.R. 8892 Before the House of Representatives Comm. On the Judiciary, 75th Cong. 3 (1938) (statement of Homer Cummings, Attorney General of the United States) [hereinafter Civil Procedure Hearings].
7. See generally Byron F. Babbitt, The New Federal Rules of Civil Procedure (1938) (providing an annotated publication of the newly enacted Federal Rules of Civil Procedure).
8. See Charles A. Wright, Law of Federal Courts 428 (5th ed. 1994) (stating that the Federal Rules of Civil Procedure were enacted on September 16, 1938).
9. See Federal Rules of Civil Procedure and Selected Other Procedural Provisions (Foundation Press 1995) (stating that significant amendments to certain rules were proffered in 1963, 1966, 1970, 1980, 1983, 1985, 1991 and 1993).
10. See Civil Procedure Hearings, supra note 6, at 121 (citing statement of Edgar B. Tolman, Secretary of the Advisory Committee on Rules for Civil Procedure, reporting the substance of hundreds of complaints of lawyers pertaining to their final arguments).
11. See id.
12. See id.
13. See id. (stating that most judges who participated in conferences on the drafting of the Federal Rules of Civil Procedure agreed that while it may take additional time to settle the requests before the arguments to the jury, it ultimately saves time by preventing errors, appeals, and reversals).
14. Fed. R. Civ. P. 51.
15. See Fed. R. Civ. P. 51 (amended 1987).
16. See infra Part II.
17. See infra Part I and accompanying notes (discussing the impact of jury instructions on the outcome of a case and ways in which jury instructions could be improved).
18. See infra Part II and accompanying notes (explaining the purposes of the three primary provisions of Rule 51: the requisite specificity of objection provision, the timing of objection provision, and the provision for making objections out of the hearing of the jury).
19. See infra Part III and accompanying notes (explaining the different methods the circuits have used to handle questions relating to the specificity of objections, including the plain error rule, and the timing of objections).
20. See infra Part III and accompanying notes (identifying which methods of applying Rule 51 are most logical compared to the overall purpose of Rule 51 and the purposes of its individual provisions, and which methods are best at accomplishing those purposes).
21. See infra Part III.
22. See infra Part IV.
23. See infra Conclusion.
24. See 50 C.J.S. Trial § 1 (1995) (defining "jury").
25. U.S. Const. amend. VI. The amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature of the accusation . . . . Id.
26. U.S. Const. amend. VII. The amendment provides: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Id.
27. Id.
28. See 75A Am. Jur. 2d Trial § 714 (1991) (noting that it is the policy of the law to ensure that the court does not invade the province of the jury).
29. Id.
30. See Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C. L. Rev. 77, 77 (1988) (detailing the contents of the judge's instructions to a jury).
31. Walter W. Steele, Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C. L. Rev. 77 (1988) Id.
32. See generally id. at 78-79 (discussing the widespread problem of incomprehensible jury instructions and methods of improving the comprehensibility of jury instructions).
33. See Steele See Thornburg, supra note 30, at 78 (1988) (stating that while most jurors try to use the given instruction, they are often confused about the instructions as well as the deliberative process itself).
34. William W. Schwarzer, Communicating with Juries: Problems and Remedies, 69 Cal. L. Rev. 731, 731 (1981).
35. See Steele & Thornburg, supra note 30, at 82-83 (stating that appellate courts are unwilling to interrogate jurors about their understanding of the jury instructions).
36. See Teaney v. City of St. Joseph, 548 S.W.2d 254, 255-56 (Mo. Ct. App. 1977) (stating that even though a judge's clarifying instructions to the jury were accurate, since the instruction proffered was a pattern instruction, elaboration on the instruction was error). The Teaney court cited the holding in Houston v. Northrup, 460 S.W.2d 572, 575 (Mo. 1972): "[I]mplicit in a scheme of approved pattern instructions . . . is the central idea that such instructions do not require further clarification or amplification."
37. Throughout the development of our present method of jury submission, the emphasis has been placed upon the use of a form of charge which will satisfy certain legal requirements, including separate submission of each relevant and ultimate issue, proper placing of burden of proof, avoiding comments on the weight of the evidence, concealment from the jury of the legal effect of their answers, and the use of definitions and instructions which are technically correct from a legal standpoint. The clarity of the charge from the standpoint of the jury has occupied a subordinate role. Whited v. Powell, 285 S.W.2d 364, 367 (Tex. 1956) (emphasis added).
38. See infra notes 110-116 (discussing situations in which plain error calls for review of a jury instruction).
39. See generally Schwarzer, supra note 34, at 743-758 (identifying the reasons for jury misunderstanding of jury instructions and possible ways to make instructions more understandable); Steele and Thornburg, supra note 30, at 98-108 (discussing the reasons jury instructions are incomprehensible and suggesting potential reforms to make them easier to understand).
40. See Steele and Thornburg, supra note 30, at 98-99.
41. Id. at 99.
42. See id. at 99.
43. See 75 Am. Jur. 2d Trial § 1168 (1995) (defining pattern jury instructions as "instructions . . . designed to be more readily understood by jurors who are often confused by nonpattern instructions which are too long and contain too many words peculiar to the law"); see also Robert G. Nieland, Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System 2-3 (1979) (discussing the goal of drafting concise, impartial, and accurate statements of the law that would act as a skeleton for the jury charge); Schwarzer supra note 34, at 737 (stating that the purposes of pattern instructions are: "(1) to save the court and counsel time in preparing instructions; (2) eliminate argumentative instructions proposed by counsel; (3) reduce the number of appeals by improving accuracy in the instructions; and (4) to improve jury comprehension") (citation omitted).
44. See Steele and Thornburg, supra note 30, at 99.
45. See John D. Perovich, Construction of Statutes or Rules Making Mandatory the Use of Pattern or Uniform Approved Jury Instructions, 49 AL.R.3d 128 § 3 (1996) (discussing jurisdictions in which the failure to use a pattern instruction where applicable is reversible error in the following jurisdictions: Arkansas, Colorado, Illinois, Michigan, Missouri, and New Mexico).
46. See Steele and Thornburg, supra note 30, at 105 (stating that drafting comprehensible jury instructions is difficult given the competing interests of the parties involved in the drafting).
47. Id.
48. See Michael J. Saks, Judicial Nullification, 68 Ind. L.J. 1281 (1993) (stating that judges may prefer giving incomprehensible jury instructions because this allows the jury to use its own common sense and fairness more than explicit instructions would).
49. See id. at 1292 ("If jurors didn't know exactly what the Bloody Code defined to be crimes, for example, judicial nullification of the law would liberate the jurors to exercise their own intuitions to do justice in the case before them.").
50. Id. at 1293.
51. See Saks, supra note 48, at 1294.
52. Id.
53. See Steele and Thornburg, supra note 30, at 83 (noting that a court will allow a jury verdict to stand, even in light of a misunderstood jury charge).
54. See Dallas Ry. & Terminal Co. v. Sullivan, 108 F.2d 581, 583 (5th Cir. 1940) ("[Rule 51] is designed to afford counsel an opportunity know in advance of the argument, the guiding principles under which the argument should be made.")
55. See Annotation, Construction and Application of Provision of Rule 51 of Federal Rules of Civil Procedure Requiring Parly Objecting to Instructions or Failure to Give Instructions to Jury, to State "Directly the matter to Which He Objects and the Grounds for Objections", 35 A.L.R. Fed 727 § 2a (1996) (stating that if properly warned of a possible mistake, the court may correct its own errors before allowing the jury to retire to apply the evidence to the law according to incorrect instructions).
56. Construction and Application of Provision of Rule 51 of Federal Rules of Civil Procedure Requiring Parly Objecting to Instructions or Failure to Give Instructions to Jury, to State "Directly the matter to Which He Objects and the Grounds for Objections", 35 A.L.R. Fed 727 (1996) Id.
57. Id. at 734.
58. See Civil Procedure Hearings, supra note 6 (discussing the legislative history of Rule 51).
59. See Tyrill v. Alcoa Steamship Co., 185 F. Supp. 822, 824-25 (S.D.N.Y. 1960) ("An essential purpose of Rule 51 is to permit counsel to argue intelligently upon the evidence, within the framework of the applicable law, and also, by reason of advance advice as to the disposition of requests for instructions, to alert him to take appropriate exceptions following delivery of the charge").
60. See Annotation, supra note 55, at § 1b (discussing the provision requiring the objecting counsel to state the matter objected to and the legal grounds for the objection).
61. See id. § 3 (noting that the purpose of this provision "is to insure that the trial judge will become aware of the claimed error and will have an opportunity to correct it at trial.")
62. Black's Law Dictionary 1073 (6th ed. 1990) (defining an "objection" as [t]he act of a party who objects to some matter or proceeding in the course of a trial, or an argument or reason urged by him in support of his contention that the matter or proceeding objected to is improper or illegal . . . . Such objections in open court are important so that such will appear on the record for purposes of appeal.)
63. See Broderick v. Harvey, 252 F.2d 274, 276 (1st Cir. 1958) (stating that Rule 51 requires counsel to state objections so that the trial judge may see the error in his charge and make corrections before the jury retires).
64. See Taylor v. Denver & Rio Grande W. R.R., 438 F.2d 351, 353 (10th Cir. 1971).
65. Missouri Pac. R.R. v. Star City Gravel Co., 592 F.2d 455, 459 (8th Cir. 1979).
66. See text accompanying supra note 14 (setting forth the text of Rule 51, including the provision requiring that counsel must be given the opportunity to jury instructions out of the jury's hearing).
67. See Downie v. Powers, 193 F.2d 760, 767 (10th Cir. 1951).
68. Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 12 (2d Cir. 1981).
69. See D.E. Ytreberg, Annotation, Construction and Effect of Provision of Rule 51 of the Federal Rules of Civil Procedure, and Similar State Rules, That Counsel Be Given Opportunity to Make Objections to Instructions out of the hearing of Jury, 1 A.L.R. Fed. 310 § 4a (1996) (stating that while courts are not required to allow parties the opportunity to make objections to jury instructions, from a fairness standpoint, this is the preferable practice).
70. See United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972) (comparing Rule 30 of the Federal Rules of Criminal Procedure to Rule 51 of the Federal Rules of Civil Procedure, and stating that "on request of any party, opportunity shall be given to object to instructions out of the presence of the jury").
71. See Swain v. Boeing, 337 F.2d 940, 943 (1964) (stating that failure to comply with the last sentence of Rule 51 does not automatically require reversal).
72. See id. (explaining that reversal is called for if the judge's denial of the request is prejudicial).
73. See Fed. R. Crim. P. 30. The Rule states: At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to all parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court may instruct the jury before or after the arguments are completed at both times. No party may assign as error any portion of the charge or omission therefrom unless the party objects theretobefore the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
74. See 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2553 (2d ed. 1995) (stating that Fed. R. Crim. P. 30 and Fed. R. Civ. P. 51 are quite similar).
75. See William T. Goglia, Annotation, When Does Trial Court's Noncompliance with Requirement of Rule 30, Federal Rule of Criminal Procedure, that Opportunity Shall Be Given to Make Objection to Instructions Upon Request, Out of Presence of Jury, Constitute Prejudicial Error, 55 A.L.R. Fed. 726 § 3 (1996) (stating the goal behind requiring objections to jury instructions to be made out of the presence of the jury).
76. See supra note 73 (setting forth the text of Fed. R. Crim. P. 30).
77. See United States v. Schartner, 426 F.2d 470, 479 (3d Cir. 1970).
78. See United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972) (stating that a jury seeing a party unsuccessfully making objections to an instruction might believe that the party's objections were meritless).
79. See Schartner, 426 F.2d at 479 (stating that Rule 30 is intended to avoid subjecting jurors to psychological pressures).
80. See Fernandez, 456 F.2d at 644.
81. Fed. R. Civ. P. 46 states: Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.
82. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1082 (3d Cir. 1991) (stating that the requirements of Rule 51 must be read in light of Rule 46).
83. Black's Law Dictionary 559 (6th ed. 1990) (defining "exception" as: [a] formal objection to the action of the court, during the trial of a cause, in refusing a request or overruling an objection; implying that the party excepting does not acquiesce in the decision of the court, but will seek to procure its reversal, and that he means to save the benefit of his request or objection in some future proceeding). Formal exceptions are generally written as opposed to objections which may be made orally.
84. 2 Richard A. Givens, Manual of Federal Practice § 7.38 (4th ed. 1991).
85. See Ellis v. City of Chicago, 667 F.2d 606, 610 (7th Cir. 1981) (stating that "nothing in Rule 46 modifies the requirements of Rule 51, provided adequate opportunity for objection has been afforded").
86. See Broderick v. Harvey, 252 F.2d 274, 276 (noting that the object of Rule 51 is to allow the judge to see his alleged error in the charge before the jury retires).
87. See Annotation, supra note 55, at § 1b. (discussing the provision requiring the objecting counsel to state the matter objected to and the legal grounds for the objection).
88. See Palmer v. Hoffman, 318 U.S. 109, 119 (1943) (stating that a party not making a sufficiently specific objection waived the right to raise the issue on appeal).
89. See Taylor v. Denver & Rio Grande W. R.R., 438 F.2d 351, 353 (10th Cir. 1971) (declaring that any objection that does not sufficiendy make the court aware of the party's objections by explicitly pointing out the legal ground for the objection will not be allowed to stand on appeal).
90. 358 F.2d 794 (1st Cir. 1966).
91. Id. at 798.
92. 738 F.2d 163 (6th Cir. 1984).
93. Id. at 167.
94. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1082 (3d Cir. 1991).
95. See Annotation, supra note 55.
96. See Commercial Property Invs., Inc. v. Quality Inns Int'l, Inc., 61 F.3d 639, 643 (8th Cir. 1995) (stating that tendering an alternative objection without a specific objection does not preserve the error for appeal); Electro Servs., Inc. v. Exide Corp., 847 F.2d 1524, 1528-29 (11th Cir. 1988) (stating that "mere offer of proposed charges . . . does not serve to adequately inform the trial judge of [counsel's] contention").
97. See Green v. Reading Co., 183 F.2d 716, 719 (3d Cir. 1950) (holding that the issue involved was within the cognizance of the trial court and that the spirit of Rule 51 was satisfied).
98. 158 F.2d 976 (2d Cir. 1947).
99. See id. at 978 (stating that "[n]o objection could be plainer than the request for an instruction diametrically opposed to the one given in the court's charge").
100. See text accompanying supra note 63 (citing Broderick v. Harvey, 252 F.2d 274 (1st Cir. 1958), stating that Rule 51 requires counsel to state its objection so that the trial judge may see the error in his or her charge and make corrections to it before the jury retires).
101. 678 F.2d 1321 (5th Cir. 1982).
102. See id. at 1325.
103. 447 F.2d 680 (7th Cir. 1971).
104. Id. at 683.
105. See Annotation, supra note 55, at 727 § 6 (1996) (stating that when a party has no chance to make objections to the trial court, it is generally recognized that Rule 51 does not prevent consideration of the jury instruction objection on appeal).
106. Black's Law Dictionary 233 (6th ed. 1990) (defining "charge to jury" as "the final address by judge to jury before verdict, in which he sums up the case, and instructs jury as to the rules of law which apply to its various issues and which they must observe").
107. See Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955) (finding that where counsel objected to omission of its jury instructions only by number, but failed to alert the court about which parts of the instructions were omitted from the charge the objection was of no assistance in determining if the instructions were in error).
108. 188 F.2d 214 (5th Cir. 1951).
109. See id. at 216 (stating that where trial judge had already been given a copy of counsel's requested instruction, counsel's reference simply to "instruction no. 6" was a valid objection).
110. See Ellis, 667 F.2d at 610 (stating that an "appellate court has discretion to disregard Rule 51 when the claim of error is obvious and to ignore it may result in a miscarriage of justice").
111. See Bertrand v. Southern Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960) ("We hold that having failed in the trial court to object to the giving of the questioned instruction by stating distinctly the matter to which he objects and the grounds for his objection, appellant is precluded from obtaining a review thereof in this court. . . .").
112. 932 F.2d 842 (9th Cir. 1991).
113. Id. at 847 (noting that the 9th Circuit only recognizes the plain error doctrine in very limited circumstances).
114. Id.
115. 453 U.S. 247 (1981).
116. See id. at 255-57 ("No 'right' to a specific standard of review exists in this setting, any more than a 'right' to review existed at all once petitioner failed to except to the charge at trial.").
117. See 7 James W. Moore, Moore's Federal Practice ¶ 61.09 (2d ed. 1996) (stating that a proper objection may not be reviewed on appeal if no prejudice arose from the trial court's overruling of the objection).
118. 958 F.2d 440 (D.C. Cir. 1992).
119. Id. at 444.
120. Fed. R. Civ. P. 61. The Rule provides: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Id.
121. See Ellis v. City of Chicago, 667 F.2d 606, 601 (7th Cir. 1981) (stating that Rule 51 should not be disregarded unless to do so would result in a miscarriage of justice).
122. See Taylor v. Denver & Rio Grande W. R.R., 438 F.2d 351, 353 (10th Cir. 1971).
123. See Transcontinental Leasing, Inc. v. Michigan Nat'l Bank of Detroit, 738 F.2d 163, 167 (6th Cir. 1984) (citing Laugesan v. Anaconda Co., 510 F.2d 307, 313-14 (6th Cir. 1975) for the proposition that "the Rule is satisfied only if it is clear that the judge was made aware of the possible error in or omission from the instructions").
124. Id.
125. See Denver & Rio Grande W. R.R.. 438 F.2d at 353.
126. See text accompanying supra notes 101-04.
127. See Broderick v. Harvey, 252 F.2d 274, 276 (1st Cir. 1958).
128. See text accompanying supra note 107. But see text accompanying supra note 109.
129. See Ellis v. City of Chicago, 667 F.2d 606, 610 (7th Cir. 1981).
130. See Hammer v. Gross, 932 F.2d 842 (9th Cir. 1991).
131. See supra text accompanying note 14 (setting out the text of Rule 51 of the Federal Rules of Civil Procedure).
132. [Rule 51] does not provide that such an opportunity will be afforded without request of counsel, but certainly that is the desirable practice. Counsel, for a number of reasons, may be reluctant to make a request, in the presence of the jury, that the jury be excused for discussion of an objection to the court's charge. The court should take the initiative. It can excuse the jury and thus afford counsel the opportunity contemplated by the Rule. If, in a routine case, that be thought a needless inconvenience of the jury, the court can summon counsel to the bench or to the judge's chambers and privately inquire if there are objections. If such a private inquiry is made at the bench and counsel indicates his wish to record an objection, the jury should be immediately excused, so that the objection may be properly made and considered on the record. Swift v. Southern Ry., 307 F.2d 315, 320 (4th Cir. 1962).
133. See Cosper v. Southern Pac., 298 F.2d 102, 104 (9th Cir. 1961) (stating that it is not reasonable to expect a trial judge to invite criticism of his instructions, and that unless counsel has indicated a desire to make an objection before the jury retires, the court's failure to provide an opportunity to object shall not be reversible error); see also Pauling v. News Syndicate Co., 335 F.2d 659, 669-70 (2d Cir. 1964) (stating that a trial judge does not have to postpone jury deliberations so counsel may make objections to the charge, unless counsel has indicated a desire to make such objections).
134. See Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1069 (1st Cir. 1990) (requiring objections to jury instructions after jury has been charged but before it retires).
135. 920 F.2d 1066 (1st Cir. 1990).
136. See id. at 1069.
137. See id.
138. Id.
139. 54 F.3d 931 (1st Cir. 1995).
140. Id. at 940.
141. The judge-lawyer face-off over the contents of the charge typically occurs at the "charge conference." That conference ordinarily transpires at the conclusion of the evidence presentation stage of the trial, and in the absence of the jury. The "conference" may well consist of the lawyers simply huddling at the judge's desk in fairly informal fashion. There the judge and attorneys quickly discuss the lawyers' previously submitted requests for jury instructions, the judge typically affording the lawyers brief opportunity for additional input and generally advising them of what he decides to charge." Perry Sentell, Jr., The Georgia Jury and Negligence: The View from the Trenches, 28 Ga. L. Rev. 1, 45 (1993).
142. See Las Vegas Merchant Plumbers Ass'n v. United States, 210 F.2d 732, 744 (9th Cir. 1954) (stating that objections made in charge conferences save time and are generally acceptable to counsel because it affords more opportunities to make objections).
143. See 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2553 (1996).
144. Charles Alan Wright Arthur R. Miller, 7 Federal Practice and Procedure (1996). Id.
145. See Little v. Green, 428 F.2d 1061, 1070 (5th Cir. 1970) (stating that allowing objections in charge conferences is good because it shortens the time between the end of the charge and when the jury can begin deliberating, it allows counsel more opportunities to object, it delays counsel from objecting to the charge until it has heard the entire charge, and it allows the judge to modify the instructions based on the objections voiced at the conference).
146. 70 F.2d 681 (10th Cir. 1966).
147. Id. at 683-84.
148. 973 F.2d 526 (7th Cir. 1992).
149. See id. at 529-30 (stating that Rule 51 does not require the recording of an objection or the grounds for it).
150. See id. (explaining that the objecting lawyer submitted an uncontradicted affidavit that stated the ground in an unrecorded session in the judge's chambers).
151. See id. at 529.
152. See id. at 529 (stating that "the main purpose of the rule - to give the judge a chance to correct an error that might require a reversal and new trial, does not require that the objection be recorded").
153. 768 F.2d 1518 (7th Cir. 1985).
154. See id. at 1536 (stating that as long as the judge makes a formal ruling on the record of the jury instructions and provides counsel with an opportunity to make its objections on the record, the objections made in the off-the-record charge conference are valid to preserve an issue for appeal).
155. 915 F.2d 1085 (7th Cir. 1990).
156. 796 F.2d 891 (7th Cir. 1986).
157. See Graham, 915 F.2d at 1106-07 (stating that an off-the-record objection does not preserve an issue for appeal, even if an objection was made during an off-the-record charge conference); see also O'Malley, 796 F.2d at 894 (stating that since the party was given a chance to memorialize the objection it made during the off-the-record charge conference, and chose not to, its objections were not preserved for appeal).
158. See supra notes 155-57 and accompanying text (discussing Graham and O'Malley).
159. See supra note 153-54 and accompanying text (discussing Murphy).
160. See Niehus v. Liberio, 973 F.2d 526, 529 (7th Cir. 1992).
161. See Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1069 (1st Cir. 1990) (applying plain error doctrine for failure to object at the proper time only if justice would be seriously impaired).
162. See supra note 14 and accompanying text (setting forth the text of Federal Rules of Civil Procedure Rule 51).
163. See Little v. Green, 428 F.2d 1061, 1070 (5th Cir. 1970).
164. Id.
165. See United States v. Fernandez, 456 F.2d 638, 644 (2d. Cir. 1972) (stating that such prejudice may arise from seeing one party in an apparent state of antagonism toward the judge and from believing that a party's objections are meritless if not sustained by the trial judge); United States v. Schartner, 426 F.2d 470, 479 (3d Cir. 1970) (same).
166. See Wright & Miller, supra note 143 (noting that many judges prefer counsel to make their objections to jury structions at on-the-record charge conferences).
167. See Niehus v. Liberio, 973 F.2d 526, 529-30 (7th Cir. 1992).
168. See Annotation, supra note 55 at § 2a (discussing procedures the court may use to simplify claims and reduce its work load).
169. See supra note 73 (discussing the purpose of counsel's objections).
170. See Ytreberg, supra note 69, at § 4a (stating that from a fairness standpoint, the best way to avoid prejudicing a jury is to allow counsel to make its objections out of the presence of the jury).
171. See Cosper v. Southern Pac., 298 F.2d 102, 104 (9th Cir. 1961) (requiring counsel to affirmatively assert his desire to make an objection to jury instructions before he can raise the Rule 51 guarantee that such objection may be made out of jury's hearing).
172. 307 F.2d 315 (4th Cir. 1962).
173. See id. at 320 (stating that since counsel may be reluctant to assert the right to object to jury instructions out of the hearing of the jury, it is up to the court to take the initiative to afford counsel such an opportunity).
174. See id. at 321.
175. See id. at 320.
176. See Swain, 337 F.2d at 942 (stating that although not reversible error, the trial court should have understood counsel's request to approach the bench to be a request to make objections out of the hearing of the jury).
177. See id. (indicating that the court felt that trial judge should interpret language such as "May we approach the bench?" or "We desire to discuss a matter with the court," as a request to make an objection to jury instructions out of the hearing of the jury).
178. See Swift v. Southern Ry., 307 F.2d 315, 321 (4th Cir. 1962).
179. See United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972).
180. See Goglia, supra note 75, at § 1a, note 1 (discussing the additional text added in the 1966 amendment - the "out of the presence of the jury" requirement).
181. See supra note 73 (providing language of Fed. R. Crim. P. 30).
182. See Cosper v. Southern Pac., 298 F.2d 104 (9th Cir. 1961).
183. See text accompanying supra note 15.
184. The court may, during the trial or at the close of the evidence, request each of the parties to submit proposed written instructions on the law of the case. No party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon. The court shall rule upon the proposed instructions and may prepare other written instructions to be given of its own motion and shall submit to the parties the instructions that will be given and provide opportunity to make objections. Objections made shall specify and state the particular grounds on which the instruction is objected to and it shall not be sufficient in stating the ground of such objection to state generally the instruction does not state the law or is against the law, but such ground of objection shall specify particularly wherein the instruction is insufficient or does not state the law, or what particular clause therein is objected to. All objections and rulings thereon shall be made out of the presence of the jury. No exceptions are necessary to the rulings of the court on the giving or refusal of instructions. The court shall read to the jury the instructions given before the arguments of counsel are commenced. Mont. Code Ann. § 25-20-51 (1997).
185. See infra note 54 to 86 and accompanying text (discussing the narrow, moderately stringent, and relaxed interpretations of Rule 51 as applied to specificity of objection). Note the relaxed interpretations which allow opposite instructions, blanket objections, and objections by reference to instruction numbers to stand as proper objections.
186. See supra note 184 (providing the language of the statute).
187. See supra note 96 and accompanying text (discussing the practice of allowing alternative instructions to stand as valid objections).
188. See Tyrill v. Alcoa Steamship Co., 185 F. Supp. 822, 824-25 (S.D.N.Y. 1960).
189. See supra note 184 (providing language of statute).
190. See Swift v. Southern Ry., 307 F.2d 315, 321 (4th Cir. 1962) (stating that, absent prejudice, it is not reversible error for a judge to fail to provide an opportunity to make objections out of the hearing of the jury).
191. See id. at 320 (stating that the preferable, though not required practice is for the court to provide the parties with opportunity to make objections to jury instructions out of the hearing of the jury).
192. Mont. Code Ann. § 25-20-51 (1997).
193. See Little v. Green, 428 F.2d 1061, 1070 (5th Cir. 1970) (stating that there are beneficial policy reasons for allowing objections to jury instructions at charge conferences).
194. See Tyrill v. Alcoa Steamship Co., 185 F. Supp. 822, 824-25 nn. 58-59 (S.D.N.Y. 1960).
195. See supra note 81 (reciting the text of Fed. R. Civ. P. 46).
196. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1082 (3d Cir. 1991) (requiring that Rule 46 and Rule 51 be read concurrently).
197. See supra note 184 (reciting the text of Mont. Code Ann. § 25-19-51 (1994)).
198. See supra note 73 (reciting the text of Fed. R. Grim. P. 30).
199. See supra note 184 (reciting the text of Mont. Code Ann. § 25-19-51 (1994)).
200. See United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972); United States v. Schartner, 426 F.2d 470, 479 (3d. Cir. 1969) (stating that hearing, objections to jury instructions out of the presence of the jury avoids putting subtle psychological pressure on jurors as a result of seeing a party in apparent antagonism toward the judge, and avoids jurors thinking that the objecting party's points are meritless).
201. See Downie v. Powers, 193 F.2d 760, 767 (10th Cir. 1951) (stating that the "out of the hearing of the jury" provision to Rule 51 was included to allow counsel to fully and frankly object to jury instructions without prejudicing the jury).
202. See Ellis v. City of Chicago, 667 F.2d 606, 610 (7th Cir. 1981) (stating that even when no objection to a jury instruction is made, the appellate court can still review a jury instruction when failure to do so would result in a miscarriage of justice).
203. See Bertrand v. Southern Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960).
204. See Martinez v. Montana Power Co., 779 P.2d 917, 920 (Mont. 1989) (stating that an instruction will not be reviewed on appeal if counsel intentionally did not object to it during the trial).
205. Mont. Code Ann. § 25-20-51 (1997).
206. See Billings Leasing Co. v. Payne, 577 P.2d 386, 391 (Mont. 1978) (stating that it is not enough for the party to demand that the court give a more specific instruction, the party must provide the court with a more specific instruction if it hopes to be able to raise the issue on appeal).
207. See Civil Procedure Hearings, supra note 6, at 21 (reprinting statement of Homer Cummings, Attorney General, which stated that the notion of allowing the Supreme Court to regulate practice and procedure in actions at law had long been desired by attorneys and endorsed by judges, the American Bar Association, several previous attorneys general, and even four Presidents).
208. See generally supra notes 54 to 86 and accompanying text.
209. See supra note 184 (quoting Mont. Code Ann. § 25-19-51 (1997)).
210. See Annotation, supra note 55 (discussing the rationale for Fed. R. Civ. P. 51).
211. See generally supra notes 87-168 and accompanying text (discussing the specificity and timeliness of an objection).
212. See generally supra notes 169-182 and accompanying text (discussing the opportunity to make objections out of the hearing of the jury).
213. See Annotation, supra note 55 (discussing the primary goal of Fed. R. Civ. P. 51).