Appellate Insights

Showing trial court error is critical in any appeal, but it’s usually not enough.  Only a few types of errors trigger an automatic reversal.  For all other types of errors, the appellant must also show prejudice—that is, a reasonable probability that the error affected the outcome of the case.

• When considering whether to pursue an appeal, analyze not only whether the court erred but also whether the record supports a finding of prejudice.
• If you are the appellant, your opening brief should include a prejudice argument under an on-point heading.
• If you are the respondent and the opening brief does not address prejudice, consider arguing for affirmance under the harmless-error doctrine.

►  The practical message:  When developing an appeal, determine whether the errors at issue are the rare types that warrant automatic reversal; if they aren’t, make sure to address how they impacted the outcome of the case.