Jury Instructions, Part I: Preserving Your Appellate Issues

Appellate Law Blog - 10.1.18This post is the first in a series that will delve into appellate issues involving jury instructions and verdict forms. Here, we provide an overview of Florida state law governing the preservation of appellate arguments relating to jury instructions. 

A trial lawyer – or appellate lawyer present at trial – must always take special care to properly preserve a trial court’s errors relating to jury instructions.

Florida Rule of Civil Procedure 1.470(b) provides that “[n]o party may assign as error the giving of any charge unless that party objects thereto at such time, or the failure to give any charge unless that party requested the same.” The manner of preservation in a Florida state court depends upon the type of error – whether the giving of an improper instruction or the failure to give a necessary instruction.


In the case of an improper instruction, counsel must preserve an error through:

  1. Objecting to the error at the time it is made; and
  2. Stating a legal ground for the objection.

A trial court has a duty to hold a charge conference. That’s when the objection to an erroneous instruction should first be made. The objection requires no special words but the point must be made clearly and specifically. Have the charge conference transcribed.

If a court neglects or refuses to hold a charge conference, counsel must object. One cannot sit by and later take advantage of the failure to hold a conference. It’s too late to object to an erroneous instruction after the jury has already retired to deliberate. Luster v. Moore, 78 So. 2d 87 (Fla. 1955). An appellate court will only consider an objection that was specifically and timely made below. Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010).

Best practices suggest that counsel should object again before and/or after the erroneous instruction is given. If the jury has a question and is later re-read the erroneous instruction, the objection should be made once again.


In the case of the failure to give an instruction, counsel must bring the requested instruction to the court’s attention. If the proposed instruction is submitted in writing and the trial court rejects the instruction, the issue is preserved. However, if the desired instruction is not in writing, an appellate court will refuse to consider it even if the trial court erred in failing to give it.

In a Florida state court, a party’s failure to preserve an objection to jury instructions cannot be cured through the fundamental error doctrine, even if the instructions are truly erroneous. “In a civil case, the policies behind the requirement of Rule 1.470(b), that objections to jury instructions be properly preserved, override the necessity that a jury be correctly charged on the law.” Feliciano v. School Bd. of Palm Beach County, 776 So. 2d 306, 308 (Fla. 4th DCA 2000).

The Florida Supreme Court has explained that a timely objection is critical because of “practical necessity and basic fairness in the operation of the judicial system.” Baker v. R.J. Reynolds Tobacco Co., 158 So. 3d 732, 737 (Fla. 4th DCA 2015) (internal quotation marks omitted). A party must put the judge on notice that an error may have occurred, giving him the opportunity to correct it at an early stage of the proceedings. Without a timely objection, the judge does not have the opportunity to rule upon a specific point of law.


The keys to preserving appellate issues on jury instructions are: object to an erroneous instruction at the charge conference and submit all requested instructions in writing.

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