Thomas R. Villecco
For many trial attorneys, the days and weeks leading up to a trial follow a familiar routine. Countless hours are spent preparing witnesses, assembling trial notebooks, obtaining experts, preparing motions in limine, developing exhibits, and tending to a host of other issues that just seem to crop up at the least opportune moment. The frenetic activity surrounding a trial occurs for one simple reason: A trial is the main event, the point at which the client, deciding that a plea bargain or settlement is out of reach, relinquishes a significant degree of control over the outcome by throwing it into the hands of the fact-finder. There being a greater risk for an adverse result, trial counsel must maintain a laser-like focus on one singular goal: winning.
In this sort of dynamic, hyper-competitive environment, trial counsel may understandably overlook how an appellate court will view an objection in the context of the entire record. An example will illustrate the point. In a medical malpractice action, the defendant physician requests to move a report into evidence. Plaintiff immediately objects, claiming that the report was written by an individual who has not testified at trial. A sidebar ensues during which time plaintiff and defendant's counsel quarrel over whether the document falls under the business record exception to the hearsay rule. The court overrules the objection, admits the document into evidence, and the trial resumes. Meanwhile, plaintiff's counsel walks away from the sidebar, comforted by the fact that at least the issue is preserved for appeal.
This article suggests, however, that counsel should do more than preserve error. That is, instead of narrowly focusing on the objection at hand, counsel should frame the objection broadly in a way that demonstrates harm. Employed judiciously, this technique—which, for the lack of a better phrase, can be called the "preserving harm" technique—will help avoid what appellate practitioners call a pyrrhic victory: a finding of harmless error.
Harmless Error Analysis
Initially, successfully utilizing this technique requires an understanding of harmless error analysis. Codified in CPLR §§20011 and 2002,2 and Fed. R. Civ. P. 61,3 the harmless error doctrine originates from the notion that litigants are entitled to a fair trial, not a perfect one.4 Not all mistakes will result in reversal, and a party claiming error must show "prejudice," or, as the Second Department put it, that the error had a "substantial influence" on the outcome of the trial.5
The appellate court will not review the error in a vacuum, but will assess it within the scope of all the evidence offered at trial. The strength of the respondent's proof,6 the extent to which the respondent relied on the error in proving its case,7 and the cumulative impact of the error, if any,8 are just a few factors an appellate court may consider in determining whether an error warrants reversal.
Thus, in a civil trial where the outcome turns on matters of credibility, the appellate court will reverse the trial court's erroneous admission of extrinsic evidence to impeach the plaintiff's credibility.9 A similar result will obtain in a criminal trial where the prosecutor, with only weak proof, relied heavily on erroneously admitted evidence to prove the defendant's guilt.10
Thus, harmless error analysis is a fact-specific inquiry that cannot be reduced to precise measurements. This, in turn, provides trial counsel the creative space necessary to marshal the facts and frame the objection in a way that demonstrates how the error will detrimentally harm the client. Consider again the hypothetical plaintiff, who wishes to preclude the introduction of a purported business record offered by his adversary. Here, counsel should flesh out the objection, and explain how the error will inexorably infect the entire case:
Your Honor, I object to this document coming into evidence. This document is rife with inadmissible hearsay, and my adversary has not shown how this document falls under the business record exception to the hearsay rule. More importantly, we are now deep into defendant's case-in-chief and it's readily apparent to everyone that defendant has presented an extremely weak defense to my client's claim. Lacking the proof he needs, my adversary now seeks to bolster his case through moving into evidence this piece of inadmissible hearsay that will serve no purpose other than to improperly inflame the jury's ire against my client. This document being his only hope to bolster his defense, counsel will rely heavily on this unreliable and unduly prejudicial item of evidence from which the jury will deny my client a favorable verdict for reasons having nothing to do with the evidence before them. The improper inference counsel seeks to elicit has been a theme of defendant's case from the outset. He mentioned it in voir dire, and again in his opening statement. Moving this document into evidence will deny my client a fair trial, and I respectfully ask Your Honor to exclude it from the jury's consideration.
The foregoing objection accomplishes two important goals. First, it places the alleged error in the context of the entire trial, thereby framing the question in the exact same light as the appellate court will review the issue. Second, it anchors the appellate claim of prejudicial error directly to the trial record. When trial counsel lodges objections without tying it into a larger theory for prejudice, counsel is effectively delegating that task to the appellate attorney, who must conjure up a theory for reversible error by piecing together various parts of the record.
Lacking a robust record to reveal the client was actually harmed, the appellate brief loses a degree of its persuasive force. By making an extensive record below, however, counsel can develop a theme of prejudicial error in the court of first instance, and, in essence, start crafting the appellate theory at trial.
Other Areas of Practice
Counsel may also apply the "preserving harm" technique in other areas of practice. Consider a different example, this one involving a plaintiff who, just one day after expiration of the statute of limitations, files suit against the landlord of a commercial premise after slipping and falling on a patch of ice on the building's sidewalk. In a motion to dismiss, counsel for the defendant should do more than rely on the mere fact that plaintiff commenced the suit after expiration of the statute of limitations. Instead, counsel should explain how plaintiff's tardiness violates the very purpose of the statute. With sufficient facts, counsel could write:
Plaintiff allegedly fractured his hip as a result of a slip and fall when he walked across a patch of ice outside of the Kwik-E-Mart on Jan. 1, 2010. According to plaintiff's verified complaint, he underwent intensive surgery that required a week-long hospital stay followed by a two-month outpatient physical therapy regimen. As plaintiff further alleges, the accident caused him to miss three months of work at his construction job, all while he allegedly suffered untold physical pain and suffering. Though plaintiff remained well aware of the facts surrounding his injury, he never commenced a lawsuit. Meanwhile, as the accident occurred at night when the Kwik-E-Mart was closed and its only two owner-employees were fast asleep, Kwik-E-Mart was entirely unaware over the past three years that a potential lawsuit exposing them to tens of thousands of dollars in liability and legal costs was waiting in the midst.
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Steve Lubowitz
Most sidebars are not on the record, so it is not preserved. Can't ask for every sidebar to be on the record. Most Judges will tell you to make a record during a break in testimony. Should use sparingly.
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