People make mistakes. Even lawyers. Even judges. We are all human after all, and to be human is to be fallible. In the pressure-packed environment of a trial or hearing, the probability that a mistake will be made is even greater.
Part of the job of an appellate lawyer is to comb through the record of what happened in the trial court, and with the benefit of a fresh perspective, find the errors, and explain to the appellate court what errors the trial judge made. But that is not the end of the story. Not even close. If it was, one would expect every appeal to result in reversal. The reality is otherwise.
Why? There are a host of reasons–ranging from the failure of the side that lost to preserve the issue (by making the argument to the trial judge) to the deference given to the trial judge in making certain decisions that he or she is in a better position to make–and there isn’t nearly enough space here to get into all of them.
The Harmless Error Doctrine
One of the most significant factors–at least when the decision being appealed was reached after a full-blown trial–is the doctrine of harmless error. It has been the subject of recent debate, and the Supreme Court of Florida is poised to set down the definitive word on the issue some time after it resumes its opinion cycle after the summer hiatus.
Harmless error, in a nutshell, is the idea that sometimes a trial judge’s ruling, even though incorrect, was too insignificant in the context of all of the trial evidence the jury saw to have impacted their decision. The doctrine exists because the law recognizes that trials are a tremendous ordeal and after so much effort by the parties, the trial judge, and the jury members, the results should not lightly be tossed aside.
After the two sides and the judge have spent so much time preparing for and conducting the trial, and the members of the jury have sacrificed their time to listen and deliberate and reach a decision, appellate courts are understandably hesitant to undo the result. On the other hand, the law is the law, and litigants have the right and expectation that the law will be applied correctly in their cases, whether or not that may cause inconvenience.
“Harmless error” is where appellate courts draw the line. In Florida, there is actually a statute that prohibits courts from reversing unless “in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”
But it is a lot easier to say that an error will not result in reversal when it is harmless than it is to figure out when an error was, in fact, harmless. How does the court know whether there has been “a miscarriage of justice”? Judges do not have the option of calling the jurors and asking them whether their decision would have been different if they had not heard testimony they should not have been allowed to hear, or if they had seen evidence they should have been allowed to see.
So appellate courts have created tests to be used as a substitute. Most recently, the Fourth District Court of Appeal of Florida (4th DCA), sitting en banc, wrestled with what test to use in its late 2011 decision in Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) (en banc).
The court began by observing that prior decisions of the Supreme Court of Florida and District Courts of Appeal of Florida reflect two ways of looking at whether there was a “miscarriage of justice.”
One approach asks whether the result would have been the same if the error had not been made. That is, looking at all of the evidence, if the jury had seen what it was supposed to see, would it have reached the same decision anyway? If so, the error is harmless. If not, a new trial is required. The 4th DCA called this test a results-oriented approach.
The second approach looked at whether the error had “an adverse effect upon the jury’s verdict.” In other words it asks whether the error “contributed to the verdict.” Was the wrongfully admitted or excluded evidence something that played a part in the jury’s decision? The 4th DCA called this approach an “effect on the fact-finder” test.
Prior 4th DCA decisions had used the results-oriented approach, and every other District Court of Appeal had also adopted some variation of the results-oriented test. Nonetheless, in Special, the 4th DCA declared that approach to be inconsistent with Florida Supreme Court precedent, and that it improperly requires the appellate court to weigh the evidence, which is not the role of an appellate court.
In its place, the Fourth DCA became the first Florida District Court of Appeal to expressly adopt the “effect on the fact-finder approach.” The rule in civil cases, it said, should be that an error is harmless only if it is more likely than not that the error did not contribute to the verdict.
Are There Really Two Approaches?
I am not convinced that the case law reflects two different approaches so much as two ways of describing the same approach. In my view, when prior cases describe harmless in two different ways, they are doing nothing more than describing the same coin from two opposite sides. Language in prior cases describing the harmless error test as asking whether the error “affected the verdict” may be stating nothing more than the other side of the question of of whether the verdict (i.e., the “result”) would have been different if not for the error.
If they are two approaches, the only difference between the two tests that I can think of is that under the “effect on the fact-finder” approach, an error can be harmful if it is something that the jury likely would have considered in the jury roorm, even if without the error, the jury would have reached exactly the same verdict relying on the other evidence in the case.
A Better Test?
I have a hard time understanding why the 4th DCA unanimously endorsed the “effect on the fact-finder” approach. How can there ever be “a miscarriage of justice” when the jury would have reached the same verdict?
I understand the 4th DCA’s concerns about appellate courts re-weighing the evidence. The first thing any appellate attorney learns is that one should never make an argument that asks the appeals court to weigh the evidence to conclude that the jury reached the wrong verdict.
But examining the trial evidence seems unavoidable in performing a harmless error analysis regardless of the approach. That is particularly true in Florida, where the harmless error statute requires that harmless error be determined based on “an examination of the entire case.” Determining whether the error likely had an effect on the jury does not avoid that problem because one cannot determine how important evidence is without looking at its context.
I also understand the 4th DCA’s goal of enhancing predictability by creating a test that is intended to be less vague and to leave less room for arbitrariness. But I do not see how speculating about whether the jury considered particular evidence is any less vague than speculating about what result the jury would have reached if not for the error.
The 4th DCA also seems to have been concerned that its prior harmless error test was too stringent, i.e., that it made it too difficult to obtain a reversal. I have not done a statistical analysis, but I read almost every opinion issued by every DCA and the Florida Supreme Court. In my observation, which is informed but admittedly unscientific, the 4th DCA had as high a reversal rate before Special as any DCA in Florida.
So however its test was nominally described, I am not sure it was any more stringent in practice than the standards used by other DCAs. In my estimation, the 4th DCA’s ultimate formulation of the test, that an error will only be found to be harmless when the beneficiary of the error shows that is “more likely than not that the error did not contribute to the judgment” throws the balance too far in favor of reversal.
Under this test, I would expect that very few errors will be found to be harmless, and reversal will become increasingly common. As I said at the outset, there are errors in every trial. There is some evidence of this happening already. No doubt that is a good thing for parties that lose at trial. For parties that obtain favorable jury verdicts, not so much.
We Should Not Have to Wait Long for Clarification
The real impact of the rule set down in Special has yet to be determined. The 4th DCA certified to the Supreme Court of Florida the question of what harmless error standard should be used in civil cases as a question of great public importance and the Supreme Court has taken up the issue. Briefing is complete, and the Supreme Court heard oral argument in April. It is now ripe for a ruling.
So we should not have too wait long to know how likely it will be that future mistakes, which will surely be made, will result in a new trial.