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7. Has the defendant preserved the issue for appeal?
The defendant would like to appeal the verdict on the ground that the judge should have instructed the jury using the defendant's proposed instruction on contributory negligence.
Before the close of evidence in a federal negligence trial, the defendant submitted a proposed jury instruction on contributory negligence. Before instructing the jury, the judge informed the parties of the instructions she would give, which did not include the defendant's proposed contributory negligence instruction but did include the court's own instruction on contributory negligence. Neither party objected, either then or after the judge had given the instructions. The jury returned a verdict for the plaintiff, and the judge entered judgment on the verdict.
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In order to raise the inadequacy of instructions on appeal, a party who wishes to make an objection to the instructions must do so before the jury retires or, in the event that «a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.» Fed. R. Evid. 51(b)-(c).
Under FRCP 51(c), a party who objects to an instruction or the failure to give an instruction must state on the record the objection, stating distinctly the matter objected to and grounds for the objection. In other words, the objecting party must give the trial judge a chance to reconsider and correct his mistake.
B is correct. The defendant has not properly preserved the issue for appeal because of the failure to make a timely objection on the record. Parties who wish to appeal an improper jury instruction (one that was either given or not given but should have been) are required to have preserved the claim pursuant to FRCP 51(c). This involves objecting as soon as the court provides for the opportunity to object, stating on the record the matter being objected to, and the grounds for the objection. If no earlier opportunity to object was given, the objection may be made prior to jury deliberation beginning. Here, after the judge informed the parties of the instructions she would give, but before she actually instructed the jury, was the time for the defendant to object. Without properly objecting, the defendant waived the issue on appeal.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The defendant has not preserved the issue for appeal, but not because of the failure to object after the judge gave the jury the instructions. To have preserved it, the defendant would have had to object when the court initially presented the proposed instructions to the parties. It would only have been proper for the defendant to wait to object until after the instructions were given IF there had been no opportunity to object earlier.
C is incorrect. Either party may submit proposed instructions. The judge then rules on the instructions and makes a final determination. After the judge's determination, a party must object to preserve an issue for appeal. Merely submitting the proposed instructions is not enough to preserve the issue.
D is incorrect. The judge's failure to give a proposed instruction does not amount to an official ruling on the instruction. Moreover, a properly-preserved argument for appeal requires an affirmative objection by the party, not simply an adverse ruling.