Tuesday, February 02, 2010

To live judge is to err

Passed along to us via e-mail from someone who heard a couple of justices on the Mississippi Supreme Court speaking at some engagement:
I heard Dickinson and Randolph speak last week. They said that there is error in every case and that the standard they apply in deciding whether to affirm or reverse is this: Judgment Fairly Obtained - Affirmed vs. Unfairly Obtained - Reversed.
This appears to be nothing more than a restatement of the familiar distinction between "error" and "reversible error":
No trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced. The record before us reveals no reversible error. No trial is perfect, all that is guaranteed is a fair trial.
Davis v. Singing River Elec. Power Ass'n, 501 So. 2d 1128, 1131 (Miss. 1987).

Appellate attorneys sometimes err by resting satisfied with showing that the trial court erred. That is necessary but not always sufficient. The appeals court does not want to think it is reaching the legally correct but unfair result (it happens, but they don't like it). Don't just argue that the trial court erred; argue that the error caused an unfair result -- or, per contra, argue that no unfairness resulted, if you're defending the judgment.


  1. I have a real problem with this. The rules are theoretically designed to arrive at a fair result, and I have a certain faith that the rules are more reliable than a judge's instincts.

    "our instincts go first, then we explain the results" (which I really take this explanation to mean)...

    I have no problem with the concept of harmless error, and do believe that counsel for the appellant should try to make the justices think his/her client did not get justice. This goes beyond that.

  2. That is indeed the other way of putting it. I think the more charitable reading is that they were simply restating Davis. "Fairly obtained" = "no error *unduly* prejudicing the appellant."

    Anyway, next time one of us encounters either justice at a CLE or whatever, we now have something to ask him!