Appellants try to get trial court judgments reversed. The basic job of appellate judges is to decide, case-by-case, whether a trial judge made an error significant enough to require that his or her judgment be overturned.

The tests appellate judges apply to make that determination are called standards of review. The applicable standard of review depends on characteristics of the challenge—for example, the type of ruling that is challenged (admission or exclusion of evidence, keeping or dismissing prospective jurors, allowing or disallowing arguments by trial lawyers) and whether the challenger gave the trial judge a chance to get the ruling right.

The “plain error” standard governs appellate review of a ruling—or the judge’s failure to rule—on an issue when the appellant did not give the trial court a good enough chance to make the right call. Maybe the trial lawyer failed to object to a question that called for hearsay, or let the prosecutor get away with calling the defendant a “mad dog” in summation, or an adversary’s use of peremptory challenges to eliminate prospective jurors because of their gender or race.

Plain error is the appellate courts’ second-toughest standard of review. (Let me know if you’ve ever gotten an appeal reversed by challenging credibility determinations in the trial court.) Reversal for plain error is exceptional in criminal appeals. In civil cases, at least my civil cases, it has been about as rare as a hen’s tooth with a root canal.

The Eighth Circuit recently vacated a criminal sentence for error in the plea bargaining process, even though no objection to the error was made in the District Court. Judge Straz’s opinion provides a clear explanation of how the appellate panel worked its way through the plain error analysis, including the necessarily speculative part of that process:

We cannot know for certain what [the defendant] would have done if the district court had stayed out of the plea negotiations. But based on this record, there is “a reasonable probability” that he would have done something “different.”

The appellant’s brief and—especially—the reply brief, written by Rebecca Kurz of the Federal Defender office in Kansas City, are excellent and would be worthy downloads for those who might want to raise plain error issues in the future.

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Photo of Michael Gross Michael Gross

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in…

Michael Gross is an appellate lawyer in St. Louis, Missouri. In addition to his work in appellate courts, Mr. Gross frequently consults with and performs legal research and writing for trial attorneys before they file suit, during the pendency of their cases in trial courts, and through the mediation process.

Mr. Gross has represented clients in the United States Supreme Court, the Second, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, and the appellate courts of several states. He previously served as a member of the Eighth Circuit’s civil jury instructions committee.

After graduating from the University of Michigan Law School in 1971 Mr. Gross served as law clerk to the Hon. M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit. He speaks frequently on topics related to appellate practice, legal writing, oral argument, and legal strategy and problem-solving at seminars sponsored by bar associations and other organizations.