AN APPEAL TO REASON

No one is perfect. During the course of a day, we make plenty of mistakes, little ones and sometimes big ones. A trial is no different. Attorneys will make mistakes, from objecting on the wrong grounds to asking an obviously ambiguous question. A clerk may make a mistake labeling an exhibit. A bailiff could make a mistake in dealing with the jurors. Your clients may also make mistakes by saying the wrong thing or making grimaces that clearly signal their opinions. And the trial court may make mistakes as it rules on evidence and controls the courtroom.

At the appellate level, the reviewing court must analyze what type of mistake it is dealing with and determine whether that mistake is harmless or prejudicial. In trying to categorize a mistake, the court will consider (1) who made the mistake, and (2) the effect of the mistake on the proceedings. As you will note, some mistakes will work in your favor while others can hurt your case.

A client once pointed out to me that the legal profession must be the most pessimistic of jobs - we see potential problems everywhere! Isn't that we are paid to do? He opined that the legal profession was often the cause of things not getting done, i.e., people were afraid of making mistakes. His observations certainly had merit. Looking for problems (or more accurately, errors) is even more refined at the appellate level.

In future posts, we will take a look at the types of mistakes you may encounter on appeal: judicial, clerical, harmless, prejudicial or reversible, "reversible error per se," and invited error.