IT MATTERS

Appellees – litigants who won before the trial court and now face an appeal – have for first line of defense that the decision in their favor was right in the first place.

A last-ditch defense is that while the judge made a mistake after all, the error did not matter.

Many have tried and, usually, failed.  Indeed, for an error not to matter, for it to be harmless (as the law calls it), there must be no reasonable possibility that it contributed to the verdict.  Since it is easy to imagine how this, that, or the other thing could just maybe have contributed to a jury’s decision, it is a nearly insurmountable hurdle.

Take a car accident where the trial judge mistakenly allowed the plaintiff to plead poverty.  This is not generally allowed: either something happened or it did not, either a defendant is responsible for it or not, and the harm to the victim is what it is, whether king or peasant.

On appeal, the plaintiff, who had been awarded $1 million for a reportedly mild rear-end collision, claimed the error did not matter.  But the mere fact that the appellate panel thought the verdict might have been out of proportion with the accident proved enough to raise some doubt that the error might have contributed to the verdict.  A new trial was ordered.

This is not to say that errors can never be harmless.  It happens – with greater frequency, it seems, in the criminal context than in civil cases.  But more often, a fair trial means one without an error of law.  Trial and appellate attorneys alike will keep the difference in the back of their mind to best serve their clients.