TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 51, N.D.R.Civ.P., Instructions to Jury
The U.S. Supreme Court has approved amendments to Fed.R.Civ.P. 51. At present, this rule is a single paragraph long. As amended, it is rewritten and organized in the outline style that is characteristic of the recent federal rule amendments. It also expands somewhat on the current rule. The end result is that the procedure for requesting instructions, ruling on requests, and objecting to instruction decisions is more transparent and easily understood.
N.D.R.Civ.P. 51 at present consists of three subdivisions--so it already contains more material than the current federal rule. Subdivision (a) and (c) of the North Dakota rule incorporate old Revised Code statutes regarding jury instructions, while subdivision (b) is nearly identical to the current federal rule.
The proposed revision to Rule 51, which is attached, incorporates the outline style found in the revised federal rule while integrating the North Dakota rule's unique principles. The proposed revision to Rule 51 reflects the logical organization of the revised federal rule--proposed subdivision (a) deals with requests for instructions, proposed subdivision (b) deals with court action on requests, proposed subdivision (c) sets out the procedure for objecting to the court's actions allowing or denying requested instructions, and proposed subdivision (d) essentially defines what a party needs to do to preserve an objection to court action on an instruction.
Provisions from the current subdivision (a) are transferred to proposed subdivision (b). The provisions of current subdivision (b), which covered requests, court action, and objections, are divided out into all the subdivisions of the proposed rule. Current subdivision (c), which set out a somewhat archaic "exception" procedure, is replaced by proposed subdivisions (c) and (d), which include a step-by-step guide to making (and preserving) objections that appears consistent with the North Dakota Supreme Court's decisions on instructions and objections.
The Committee may wish to consider if the terminology used in proposed paragraph (d)(1), which refers to assigning error, is consistent with the terminology used in North Dakota's courts. In regard to paragraph (d)(2), the North Dakota Supreme Court has said that "plain error" in instructing the jury is grounds for relief. See Rau v. Kirschenman, 208 N.W.2d 1 (N.D. 1973).