Skip to Content

It Can Be Easy to Fail to Preserve, Or Even to Waive, Jury Instruction Error

Preservation of Error Tips

A recent Pennsylvania Supreme Court decision demonstrates how easy it can be not to preserve, or even waive, error in a trial court’s jury instructions.

Prior to trial, the plaintiff in Jones v. Ott, Case No. 12 WAP 2017, 2018 WL 3977960 (Pa. Aug. 21, 2018), filed proposed jury instructions on negligence per se. At trial, those requested instructions were not given to the jury, but the charge conference was not recorded and no mention of the requests was made on the record. When the trial court finished instructing the jury and asked if any party wanted to put something on the record, the plaintiff’s counsel responded, “I have no issues with the charge, Your Honor.”

After the jury returned a defense verdict, the plaintiff moved for a new trial based on the trial court’s failure to give the requested instructions. The plaintiff relied on case law seeming to permit a jury instruction challenge where a requested instruction was filed with the trial court and the issue was raised in a post-trial motion.

The trial court ruled that the challenge was not preserved. The intermediate appellate court held that any challenge was waived.

A divided state supreme court agreed with both of those decisions.

The state supreme court traced some uncertainties in the case law and clarified Pennsylvania’s requirements for preserving jury instruction error. The court held that to preserve a jury instruction challenge under Pennsylvania law, a party must either make a contemporaneous objection on the record or make requested points for charge part of the record, obtain an explicit ruling, and raise the issue in a post-trial motion. The high court also ruled that, apart from preservation, trial counsel’s post-charge statement in open court constituted an express waiver of any jury instruction challenge.


Two basic concerns tend to dominate any preservation analysis: whether the party asserting error gave the trial court a timely and meaningful opportunity to rule on the issue, and whether the record reflects the party’s preservation steps and the trial court’s adverse ruling. If either of those concerns is not met, then preservation may be in doubt.

Of course, more may be necessary, as demonstrated by Pennsylvania’s requirement that a challenge to overruled jury instruction requests be raised again in a post-trial motion.

Ultimately, it is important that trial counsel — or better, appellate counsel, present at trial to provide trial support — be aware of ambiguities in a jurisdiction’s preservation law, and then follow the most cautious approach.

Additionally, avoid saying anything at trial that arguably waives a previously asserted position. If a jurisdiction’s preservation requirements call for a party to stand on a previously overruled objection in open court, then consider making arrangements with the court and opposing counsel before that moment arrives, such as with a stipulation that the party maintains the objection and need not announce disagreement with the judge in front of the jury. Or, reference a previously stated objection without details, such as by saying, “Your Honor, we believe the instructions as read reflect the Court’s prior rulings, and we maintain our previously asserted positions.”

©2024 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.


The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.