Waiver, Forfeiture, the Plain Error Doctrine, and the “Third Circuit Model Jury Instructions”

Robinson v. First State Community Action Agency, 920 F.3d 182 (3d Cir. 2019).  This opinion by Judge Fuentes today affirms a plaintiff’s verdict in a jury trial under the Americans With Disabilities Act (“ADA”).  Plaintiff and defendant, who is plaintiff’s former employer, “proceeded under the [same] case theory throughout litigation, trial, and post-trial briefing.”  Only on appeal did defendant try to “unring the bell,” as Judge Fuentes put it.  The panel rebuffed that effort, holding that defendant had “waived this argument because of its continued acquiescence to Robinson’s case theory, its encouragement of the adoption of the very jury instruction to which it now objects, and its failure to include this error in its post-trial briefing.”

The theory on which both sides tried the case was plaintiff’s claim that she was wrongfully “regarded as” having an impairment (in her case, dyslexia).  But the “regarded as” theory was did not survive amendments to the ADA in 2008.  Thus, the jury instruction about the “regarded as” theory was error.  The question on appeal was whether that error was waived or should be reviewed as plain error because it was not raised below.

Judge Fuentes noted that the “regarded as” issue was not merely raised by the jury instruction.  Rather, it “was more broadly a flaw in Robinson’s theory of the case that dated back to summary judgment briefing, and First State at no time objected to that theory despite numerous opportunities to do so.”  The panel concluded that defendant had waived any claim of error.

Judge Fuentes explained that the effect of failing to preserve an argument depends on whether that failure constitutes a forfeiture or a waiver.  Forfeiture, he said, is “the failure to make the timely assertion of a right,” while waiver is “the intentional relinquishment or abandonment of a known right.”  Waived arguments “may not be resurrected on appeal,” but forfeited arguments can be presented and reviewed under the plain error standard of review.

Defendant’s actions here were appropriately considered as waiver.  At the summary judgment stage, at trial, and post-trial, defendant never objected to plaintiff’s “regarded as” theory.  In fact, defendant even “jointly recommended” the jury instruction about “regarded as.”  Defendant’s failure to object at the summary judgment stage was not, standing alone, enough to constitute waiver, Judge Fuentes said, but the entire course of its conduct was.

Judge Fuentes then went on to discuss the parties’ arguments about the effect of a model jury instruction that erroneously included the “regarded as” doctrine.  Plaintiff had argued that the giving of that instruction, part of what is called the “Model Civil Jury Instructions for the District Courts of the Third Circuit,” could not have been plain error because it was contained in the Model Instructions.  Judge Fuentes hastened to correct that perception.

The “Third Circuit Model Jury Instructions,” as they are known, are not the product of the Third Circuit or any of its members.  Rather, they are drafted by “the Committee on Model Civil Jury Instructions, consisting of eight district court judges from districts within the Third Circuit, who also collaborate with the Committee’s reporters, two law professors.”  Though the Committee’s work is partially funded by the Third Circuit, and the instructions appear on the Third Circuit’s website, they are not the Third Circuit’s own instructions (though Judge Fuentes candidly acknowledged in a footnote that the court had “contribut[ed] to the confusion” by referring to the instructions as “our own” in at least one opinion).

The Third Circuit, Judge Fuentes said, has never stated that a model jury instruction cannot constitute error.  “Judges and parties are not free to incorporate incorrect legal principles simply because there is a similar error in these or any model jury instructions.  Model instructions are designed to help litigants and trial courts, not to replace their shared obligation to distill the law correctly when drafting proposed jury instructions.”  The model instructions unfortunately had not been modified to address the 2008 amendments (the trial of this case apparently occurred in December 2017).

The lesson here is that the parties are responsible for ensuring that jury instructions are current, even model instructions.  New Jersey state courts have previously confronted errors in model jury charges, as discussed here.  In any court, it is prudent to ensure that model instructions in changing areas of the law have been updated.