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.

What is "reversible error per se"?

To continue on with the types of errors encountered in reviewing cases on appeal, let's examine errors that constitute "reversible error per se."

"Reversible error per se” occurs when the error is inherently prejudicial, and thus, the appellant is not required to demonstrate actual prejudice.  These errors frequently involve constitutional issues, such as where a party is deprived of the right to a fair hearing or a jury trial.  “A structural error requires reversal without regard to the strength of the evidence or other circumstances.”  (In re Enrique G. (2006) 140 Cal.App.4th 676, 685.)  If such errors are committed, the appellant is almost guaranteed a reversal because the impaired right is so fundamental that prejudice is presumed.  It may occur where the court denies the parties the right to a jury trial (Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 697-698), the denial of a party’s right to testify or present evidence (Kelly v. New West Fed. Sav. (1996) 49 Cal.App.4th 659, 677), the denial of the right to cross-examine witnesses (Fremont Indem. Co. v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 971), and the trial court’s failure to render a statement of decision after a timely request.  (Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282-284.)

If an appellant can show that an error is “reversible per se,” then the burden falls on the respondent to present an adequate record to demonstrate the error was harmless.  If the respondent fails to do so, the appellant can win the appeal just by demonstrating the error occurred.  (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4^th 678, 683-684.)

What can you learn from actors?

Over the weekend I attended a three-day workshop put on by Act of Communication.  The principals of the company are actors, Katherine James and Alan Blumenfeld, who teach trial attorneys how to "perform" in the courtroom.  Maybe the word "perform" isn't exactly accurate; what they try to teach is how attorneys can be more of themselves, and less of a false image of how a trial attorney should act and sound.

I find great value in these seminars because they fill a need.  You may go through law school and take all the important classes, but never have your public speaking skills critiqued.  Once you get your first job at a law office, you may be thrown into court, either through series of appearances to argue motions or even begin trying cases.  You can read your papers and try to remember the applicable law and the facts of the case.  You might even call that preparation.

But unless you give a lot of thought to not only what you are going to say, but how you will say it, then you haven't fully prepared.  And unless you practice your presentation to the point that you have it taken it in so that you can now be spontaneous, you are still not fully prepared.

After watching attorneys appear in court, and watching some of those attorneys pay attention to their nonverbal cues, I can vouch for the benefits of working with actors.  For instance, trial attorneys understand the importance of voir dire but may not realize that eye contact - or lack of it - tells the jurors that the attorney isn't really interested in what the jurors have to say.   Once the opening statement is made, an attorney may avoid looking at the jury, preferring to connect with the witness on the stand, until closing argument.

Another example is how attorneys ask questions at trial.  Does the attorney go through a checklist, asking a question without even looking up or acting as if he or she already knows the answer?  Most attorneys have a good idea of what that answer might be, but they have communicated their indifference to the jury by the inflection and tone of their voice.

This is a hands-on seminar that really produces change.  I have watched how attorneys deliver a presentation on the first day, and a few days later, it is as though someone new took their place.  The presentations are more compelling and persuasive.   What's more, the attorneys are energized by this new knowledge and really look forward to applying these new skills in trial.  If you have any interest - or know that you need to work on those nonverbal skills -  take a look at www.actofcommunication.com.

More on prejudicial error

In most cases, it is not enough to simply point out that a prejudicial error has occurred.  The appellant must thoroughly discuss how the error is prejudicial in the context of the case.

In Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, the court discussed this burden:

“Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there. Since the appellate court must affirmatively find prejudice such finding must be based either upon the facts found in the record or upon the reasonable inferences to be drawn therefrom. In the face of the constitutional limitation there is no room for the presumption that prejudice results from the fact of error alone. The fact of prejudice is just as essential as the fact of error.”

(Id. at p. 77.)

As noted in Paterno v. State of California (1999) 74 Cal.App.4th 68, the court’s duty to examine the entire record arises only after the appellant has fulfilled his or her duty to make an argument establishing prejudice.  “Because of the need to consider the particulars of a given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice.”  (Id. at p. 106.) 

In Pool v. City of Oakland (1986) 42 Cal.3d 1051, the court quoted from Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 770, (overruled on other grounds in Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85): “‘[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’  is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ”  (Id. at p. 1069.)  More specific language can be found in cases dealing with the specific error involved, i.e., jury argument, instruction, exclusion or admission of evidence, etc.  Seaman also acknowledged, “The test is ‘necessarily [ ] based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.”  (Id. at p. 770.)

Do you have a prejudicial error?

The fundamental question you must decide in taking an appeal is whether the legal error is prejudicial.  If it is not, you might as well stop what you're doing.  If it is, please proceed to "Go."

The requirement that an error be prejudicial to justify reversal of a judgment or order finds its source in the California Constitution, Article VI, section 13:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Code of Civil Procedure section 475 also addresses prejudicial error:  “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed.”  Evidence Code section 353 provides that no verdict or finding shall be set aside, or a judgment or decision reversed, based on the ground of erroneous admission of evidence unless the error resulted in “a miscarriage of justice.”  (Evid. C., §§ 353(b), 354.)

Since prejudice is not presumed, according to Code of Civil Procedure section 475(b), the appellant bears the burden of affirmatively demonstrating prejudicial error.  Trial attorneys will often tell me about errors that occurred during trial.  Some of these errors might not appear in the record such as in-chamber or sidebar discussions.  Once the error has been found in the record, appellant must take a two-prong approach – the error exists and it is prejudicial.  On the other hand, respondents will also take a two-prong approach - no error occurred but even if it did, the error is not prejudicial.