How do you invite an error?

This type of error is, in my opinion, a gift if the opposing side makes the error, and a major headache if the party I represent has made the error below.  Invited error may raise an issue of attorney malpractice.  Certainly no attorney wants to see language in an opinion that invited error has occurred, unless it is done by the other side.  A question arises as to whether the attorney or the party engaged in conduct that permitted the error, or if the attorney had acted differently, the court might have been made aware of the error and had an opportunity to correct it. 

The doctrine of “invited error” acts as an estoppel against an appellant, who cannot complain about an error that he or she “invited” due to conduct that induces or permits error by the trial court.   “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is stopped from asserting it as a ground for reversal’ on appeal. . . At bottom, the doctrine rests on the purpose of the principle, which prevents a party from misleading the trial court and then profiting therefrom in the appellate court.”  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) (Citation omitted.)

Invited error might occur when the appellant complains that the court erred in allowing the introduction of inadmissible evidence during part of the trial; however, the record shows the appellant offered the same evidence in another time.   Another example of invited error could occur when an appellant contends an instruction should not have been given to the jury but he or she requested the same instruction or one substantially similar to it.  (Horsemen’s Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal. App.4th 1538, 1555.)

If you feel that an error has been committed by the opposing party during trial, do not lose the opportunity to complain on appeal by engaging in conduct that might be considered to have invited the error.