Advisory Committee’s Notes 1988

Rule 51(a) is amended at the request of the Conference of Superior Court Justices by deleting paragraph (1), which gave each party in a Superior Court civil action one hour for closing argument. The effect of the amendment is to make former paragraph (2), setting forth the District Court practice under which the court has discretion as to the time for argument, applicable in both courts. The purpose is to expedite Superior Court trials by allowing the court to curtail argument in cases where the issues are clear.

Advisory Committee’s Notes 1992

Rule 51(b) is amended to provide that the court has the option of instructing the jury before or after closing argument, or both before and after. The amendment adopts a 1987 amendment of Federal Rule 51 intended to permit resort to the long-standing federal practice [of instructing after argument] or to an alternative procedure, which has been praised because it gives counsel the opportunity to explain the instructions, argue their application to the facts and thereby give the jury the maximum assistance in determining the issues and arriving at a good verdict on the law and the evidence. As an ancillary benefit, this approach aids counsel by supplying a natural outline so that arguments may be directed to the essential fact issues which the jury must decide . . . . Moreover, if the court instructs before an argument, counsel then know the precise words the court has chosen and need not speculate as to the words the court will later use in its instructions. Finally, by instructing ahead of argument the court has the attention of the jurors when they are fresh and can give their full attention to the court’s instructions. It is more difficult to hold the attention of jurors after lengthy arguments.

Fed. R. Civ. P. 51(b) advisory committee’s note to 1987 amend.

COMMENTS

§ 51(a). Closing Argument.

Guidance for what is and is not proper closing argument is provided in Rule 3.7(e) of the Code of Professional Responsibility. The close cases are heavily fact-specific, making development of general principles beyond those set out in Rule 3.7(e) difficult. Most scholarly comment has focused on prosecution closing argument in criminal cases. See Clifford, Identifying and Preventing Improper Prosecutorial Comment in Closing Argument, 51 Me. L. Rev. 241 (1999). Note, Prosecutorial Summation: Where is the Line Between ‘Personal Opinion’ and Proper Argument?, 46 Me. L. Rev. 241 (1994).

Objection to an argument believed to be improper should be presented at the time the improper argument is made, so that the court may take reasonable steps to correct any problem. State v. Boone, 563 A.2d 374, 377 (Me. 1989); State v. Hinds, 485 A.2d 231, 237 (Me. 1984). Where an objection is sustained and the court states a curative instruction, the party stating the objection must make a further objection or move for a mistrial to preserve the issue for appeal. See State v. Quirion, 2000 ME 103, 25, 752 A.2d 170, 175.

Beyond the governing ethical rules, each closing argument must be carefully tailored to the personal style and skills of the person presenting it, the nature of the case, and the fact-finder to whom the argument is being presented. However, one particular practice point is suggested. Take “I,” “My” and “Lie” out of closing argument vocabulary. Keeping these three words, which add little value, out of closing argument will aid in avoiding objections and the personalization concerns, ethical problems and party demeaning issues that can occur in closing arguments. Cf. State v. Chesnel, 1999 ME 120, 32, 734 A.2d 1131, 1141; State v. Casella, 632 A.2d 121 (Me. 1993); M. Bar. R. 3.7(e)(2)(iv) and (v).

§ 51(b)(1). Instruction Request Practice.

Instruction requests should be carefully tailored to the issues of particular concern in each case. Rule 51(b) indicates that instruction requests should be in writing. However, in routine cases instruction requests may be presented orally when the issue is not the precise wording of the instruction but whether instruction on a point should be given at all, e.g., comparative fault, permanent impairment.

Most judges will have their own instructions for common issues such as burden of proof, witness credibility and the function and responsibilities of the jury. Parties need not file instruction requests for such issues unless some change from usual instructions is requested.

Points of particular concern should be presented to the court in carefully crafted, individual instruction requests directed to the matter on which specialized instruction is requested. Filing repetitive but differently worded instruction requests directed to the same point of law once a common practice in civil cases is bad practice that has been specifically disapproved by the Law Court.

Parties who engage in the practice of filing numerous, duplicative, separately numbered jury instruction requests addressing similar issues with varying language risk diverting attention away from issues of particular concern in jury instructions for the case at hand, both at trial and on appeal. Repetitive quotations from authorities ten, thirty, or sixty years old add little to development of the body of instructions that is necessary and appropriate for the case immediately before the court. Instruction requests should be drafted in a way that is narrowly focused on the particular issues of concern in the pending case. See State v. Ashley, 666 A.2d 103, 107 (Me. 1995) (“[I]nstructions should be developed in a manner that explains the law to the jury in the context of the individual case.”).

Clewley v. Whitney, 2002 ME 61, 7, 794 A.2d 87, 90.

A party is entitled to a requested instruction only where that party can demonstrate that:

(a) it states the law correctly;

(b) it is generated by the evidence in the case;

(c) it is not misleading or confusing;

(d) it is not otherwise sufficiently covered in the given charge, and

(e) the refusal to give the requested instruction is prejudicial to the requesting party. Mixer v. Tarratine Market, 1999 ME 27, 6, 724 A.2d 614, 615; Reno v. Townsend, 1997 ME 198, 4, 704 A.2d 309, 310-11.

It is good practice to advise the court of unusual or complicated instruction requests well in advance of the close of the evidence. This allows all concerned adequate time to consider and prepare jury instructions. Presenting complicated instruction requests at the last minute is bad practice, as the opportunity for deliberate consideration of such requests is reduced. An instruction request presented late in the trial or at the end of the evidence may be refused, even if it correctly states the law, if it would change the nature of the evidence or issues in the trial. State v. Kelly, 606 A.2d 786, 788 (Me. 1992) (Instruction on 20-year adverse possession claim properly refused when presented after close of evidence in case tried under 40-year claim statute.).

If a party waits until the close of the court’s instructions to request instruction on a new point, the court may, in its discretion, refuse to instruct on the point in order to avoid giving special attention or undue emphasis to the subject of the instruction after all other instructions have been given. State v. Atkinson, 458 A.2d 1200, 1203-04 (Me. 1983); State v. Merrifield, 478 A.2d 1131, 1133 n.2 (Me. 1984).

Some pretrial orders direct that unusual instruction requests and briefs on contested points of law be presented either at the start of trial or at some other specific time. Failure to follow directions in pretrial orders may result in a waiver of an objection to a ruling on the point where assistance was requested in a pretrial order. Stanley v. Schiavi Mobile Homes, 462 A.2d 1144, 1146 n.2 (Me. 1983).

§ 51(b)(2) Objections to Instructions.

Objections to jury instructions are presented after the instructions and before deliberations begin, so that the trial judge and any reviewing court can have the background of the entire body of the instructions in ruling on objections and supplemental instruction requests.

A party must object “stating distinctly the matter to which the party objects and the grounds for the objection.” Failure to direct the court’s attention to the challenged language of a jury instruction or to offer a more acceptable version may render the objection inadequate to preserve the issue for appeal. See Morey v. Stratton, 2000 ME 147, 9; 756 A.2d 496, 499; Fuller v. Central Maine Power Co., 598 A.2d 457, 460 (Me. 1991). A generalized citation to a group of requested instructions is insufficient to properly preserve objections to a particular point in the court’s jury instructions. Clewley v. Whitney, 2002 ME 61, 9, 794 A.2d 87, 90. However, lengthy discussion is not required. If there was a discussion of instructions and rulings on instruction requests prior to argument, that discussion can be incorporated by reference in the record made after the close of instructions, assuming the earlier discussion was recorded.

Where, in discussion prior to argument, a party requests specific instructions and the court (1) explicitly refuses to give the requested instructions, and (2) indicates in an on the record discussion that the issue is preserved, the party’s request and objection is preserved as a claim of error only if the issue addressed in the requested instructions is not contained in the court’s instructions to the jury. See State v. Dumond, 2000 ME 95, 10, 751 A.2d 1014, 1017. Where specific instructions are proposed and the trial court generally covers the subject matter of the proposed instructions in its own language, a party must make a specific and focused objection after the instructions are completed and propose language to correct the perceived problem in order to preserve the issue for appeal. Clewley v. Whitney, 2002 ME 61, 10, 794 A.2d at 90-91.

Points in instructions not objected to are waived, subject to the “obvious error” standard of review, M.R. Evid. 103(d); M.R. Crim. P. 52(b); Morey v. Stratton, 2000 ME 147, 10, 756 A.2d at 499; State v. Davis, 528 A.2d 1267 (Me. 1987).