CHAPTER 3 Reversible Error

• Jurisdiction: United States

CHAPTER 3

Reversible Error

3-1 Introduction

Litigation is not a game. It is not a law school examination. It is a real-world means of resolving disputes affecting real people or entities. It also costs taxpayer money. As a result, the law has evolved to require that an error be harmful before it can be reversible. The reversible-error rule "establishes a sound and common-sense policy of not reversing a judgment unless the error or errors can be said to have contributed in a substantial way to bring about the adverse judgment."¹ This rule applies to all errors.²

The doctrine of reversible error is a necessary compromise between the requirement of due process of law and the ability to decide a volume of cases expeditiously. "The rule recognizes that a litigant is not entitled to a perfect trial for, indeed, few trials are perfect."³ In short, if an error probably made no difference in the outcome, neither the parties nor the system should be put to the burden of another trial.

As a result, only those errors that probably caused an improper judgment are held reversible.

3-2 General Considerations

3-2:1 Reversible Error vs. Harmless Error

The flip-side of reversible error is harmless error. The two terms require definition.

3-2:1.1 Definitions

Reversible error means that the error "probably caused the rendition of an improper judgment."⁴ An error by the trial court that "probably prevented the appellant from properly presenting the case to the court of appeals" also is reversible.⁵ But when the latter can be corrected, the appellate court orders the trial court to do so and then the appeal proceeds.⁶ Harmless error is everything else.

3-2:1.2 Appellant's Burden to Demonstrate Probable Harm From Record as a Whole

Because of the need to move cases through the system, a judgment by the trial court is rebuttably presumed to be correct; thus, the burden is on the appellant to demonstrate reversible error from the entire record.⁷

Not all reversible errors, however, require the entire judgment to be reversed:

If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error.⁸

This has one important exception: "The court may not order a separate trial solely on unliquidated damages if liability is contested."⁹

3-2:1.3 Presumed Harm

Nevertheless, a few types of cases embrace the concept of presumed harm. One is incurable jury argument, usually an appeal to racial or national prejudice, or something outrageously inflammatory.¹⁰

A second is the "Casteel"¹¹ problem in the court's charge. That problem typically commingles valid and invalid theories in a single jury question, so that one cannot be sure that the jury answered the question on the basis of the valid theory. The Supreme Court has held that harm is presumed in those instances.¹²

A third involves improper jurors included on the panel. Appellate courts presume harm when improper jurors participate in deliberations.¹³ Similarly, harm is presumed when the trial court excludes jurors by erroneously denying a Batson¹⁴ challenge.¹⁵

3-2:2 Distinguishing Reversible Error From Preservation of Complaints

Many Texas cases confuse three distinct concepts: (1) preservation; (2) error; and (3) harm. So you see cases saying something like: "Because appellant made no objection, the trial court did not abuse its discretion; hence, there is no reversible error." Although that may occasionally save a lawyer from an adverse malpractice judgment, it risks serious analytical confusion.

3-2:2.1 Waived Errors

Whether an appellant preserved a complaint has nothing to do with whether an error occurred. And whether an error occurred simply begs the question whether the error is harmless. The logical analysis flows as follows:

Was the Complaint Preserved?

3-2:2.2 Invited Errors

You also find similarly loose language in some cases about the doctrine of invited error. "The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal."¹⁶ The appellate courts rightly reject those challenges. But the analysis should not be on the basis of harmless error. Instead, the analysis should be one of preservation: a party is estopped to complain of a ruling the party asked the judge to make. First, a party may not schizophrenically complain about what it asked the court to do. Second, even if the party both invited the error and objected to it in the trial court, the complaint could not have been clearly and specifically presented to the trial court in light of the mixed signals stemming from the invitation. So the preservation requirement of Rule 33.1(a)(1)(A) is not met.

Similarly, an erroneous decision by a trial court can be rendered harmless by subsequent events.¹⁷ So a party could possibly remove the harmful effect of an earlier erroneous ruling by subsequently introducing similar evidence, making a similar argument, requesting a similar charge, or having the court reconsider a ruling.

3-2:3 Distinguishing Reversible Error From Scopes and Standards of Review

The applicable scope and standard of review determines whether error has occurred. But they have no role in the analysis of reversible error.

3-2:3.1 Errors Affecting Fact Findings

Probably the most common type of reversible error affects the fact findings leading to the judgment. As will be discussed further, this can take many forms.

3-2:3.2 Cumulative Error

A reviewing court may reverse a lower court judgment under the cumulative-error doctrine when the record shows a number of instances of error, no one instance being sufficient to call for reversal, yet all the instances taken together may do so.¹⁸ Yet the doctrine of cumulative error is somewhat superfluous. It is usually stated as errors that individually might be harmless can be accumulated to present reversible error. But the standard test for reversible error examines "the entire record."¹⁹ The entire record includes all the other errors. So logically there is no need for a separate doctrine of cumulative error; it is just another subset of reversible error.

3-3 Pre-Trial Rulings

Pre-trial rulings are subject to the reversible-error doctrine. When they probably affected the validity of the judgment, they are reversible error.²⁰

3-3:1 Subject-Matter Jurisdiction

An error involving subject-matter jurisdiction is always reversible, because it is a void judgment.²¹ The proper remedy is to vacate, rather than reverse, the judgment.²²

3-3:2 Personal Jurisdiction

An error involving personal jurisdiction is always reversible, because a judgment against a party over whom the court has no jurisdiction is void.²³ The proper remedy is to vacate, rather than reverse, the judgment.²⁴

3-3:3 Venue and Forum

By statute and rule, an erroneous venue ruling is reversible:

On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error.²⁵

An error regarding the proper forum also is reversible, because the wrong court cannot render a valid judgment. So the proper remedy is to dismiss the case.²⁶

3-3:4 Sufficiency of Pleadings

If the court erred in striking pleadings, the error is reversible, because the judgment must conform to the pleadings.²⁷

3-3:5 Docket Control and Discovery Rulings

Errors affecting docket control and discovery are reversible only if they probably caused an improper judgment.²⁸ That varies depending on what the entire record demonstrates about the probable effect of the particular ruling in question.

3-3:6 Summary Judgment

An error in granting summary judgment is always reversible, because it by definition resulted in an improper judgment.²⁹

3-4 Trial Rulings

Trial rulings are reversible when they probably led to an improper judgment.³⁰

3-4:1 Administration of Trial

Incidental trial court rulings have to be evaluated from the record as a whole with regard to the particular ruling under review. Unless those rulings probably caused an improper judgment, they are harmless error.³¹

3-4:2 Selection of Jury

Rulings about the selection of the jury now seem to turn on the facts. Because they potentially affect the fact-finding process, erroneous rulings regarding the questioning of prospective jurors and rulings on challenges for cause generally are reversible error.³²

Harm is also presumed when a trial judge excludes jurors by improperly denying a Batson³³ challenge.³⁴

When the trial court errs in allocating peremptory strikes, the harmless-error rule is "relaxed."³⁵ This is necessary because peremptory strikes reflect "intangibles not susceptible of precise description" rendering it difficult to establish how the absence of a particular juror might have made a difference.³⁶ The test is, instead, whether the trial was "hotly contested and the evidence sharply conflicting."³⁷ This depends on the number of witnesses, the number of jury questions, and whether the verdict was...