The trouble began with an off-the-record charge conference. Both sides proposed standard breach of contract jury instructions, but the defendant added additional language. The trial court gave the defendant’s version. The court also permitted the parties to place exceptions to the instructions on the record, but in doing so the plaintiffs made a general objection to not giving all of their proposed instructions without specifically discussing the additional language in the breach instruction.

On appeal, the Washington Court of Appeals held that any error was not preserved. Millies v. LandAmerica Transnation, 185 Wash. App. 1024 (Wash. Ct. App. 2015), rev. granted, 349 P.3d 856 (Wash. 2015).

The appellate court refused to rely on the plaintiffs’ mere assertion that they made a proper objection at the off-the-record charge conference. The court also refused to view the subsequent general objection as sufficiently identifying the plaintiffs’ disagreement with the breach instruction, refused to rely on the plaintiffs’ own proposed instruction as implicitly objecting to anything different, and refused to rely on the plaintiffs’ statements in their trial brief on the governing law. The appellate court stated, “Any objection should be placed on the record at the time assigned during trial for objections, not buried in a brief.”

Preservation Issue: Objections to jury instructions should specify the instruction given or not given over objection and explain the particular basis for the objection. Otherwise, an appellate court may determine that any error is not preserved.

Tips: Avoid off-the-record charge conferences, if possible. If a trial judge insists on proceeding off the record, then, afterwards, on the record, methodically state objections for each instruction given or not given over objection, including the basis for the disagreement. Doing so is not disrespectful toward the judge—it is making a record for a possible appeal.

Also, do not expect that implicit objections to jury instructions will be recognized. In Millies, the appellate court was unwilling to accept statements made in a pretrial brief or the plaintiffs’ own proposed instructions as implicitly disagreeing with the trial court’s later rulings.

Finally, be aware of local rules or case law defining how jury instruction objections must be made. In Washington, a rule of procedure expressly requires a party objecting to a jury instruction to “state distinctly the matter to which counsel objects and the grounds of counsel's objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made.”

The Washington Supreme Court has granted review of the Millies decision, but regardless of how the case fares on higher review, the lessons to be learned in how to avoid preservation of error concerns are generally applicable across courts.