Civil Appellate Services in Colorado

“I didn’t receive a fair trial!” — What to do when you need a new trial

In some ways, trials are like basketball games: two sides are competing back-and-forth, sometimes on offense and sometimes on defense, while a referee (or judge) makes numerous calls on the spot, determining when one side or the other does something wrong.  Some trials are fast-paced; some trials are slower paced.  But in all trials, there are dozens upon dozens of chances for judges and attorneys to make mistakes—and they will.

Your chances of getting a new trial for a mistake by the trial judge vary drastically based upon what type of error it was.

Normally, judges have leeway—or discretion—in making decisions on how to conduct a trial.

Just as a referee applies the rules of basketball to make “close calls” during the game, a trial judge applies the law to make close calls during a trial.  When the trial judge resolves a situation where both sides have reasonable arguments in favor of their positions, it is very difficult for the losing side to successfully challenge that decision on appeal.

These in-the-moment, arguable “close calls” are called discretionary judgments.  An appellate court is unlikely to grant a new trial or dismiss a verdict based upon such “close calls.”  The appellate court will only do so if the close call was arbitrary or manifestly unreasonable.  This is called an abuse of discretion.  It is not enough that the appellate court might think the trial judge should have ruled the other way.  If the trial judge’s decision has an arguable basis under the law and facts of the case, the appellate court will not grant a new trial.

Sometimes a judge will misapply court rules in a way that is clearly a mistake and substantially undermines the fairness of the trial.  As an example, Colorado Rule of Civil Procedure 47(h) states that each side in litigation receives four peremptory challenges.  That means, when determining who will serve on the jury, each side is allowed to remove four people from the entire group being considered for jury service.  This allows each side to remove people that would be likely to have a bias in favor of the other party.  (For example, in a medical malpractice claim, an injured patient might want to remove a doctor from the jury, concerned that doctor will have sympathies for the doctor being sued.)

Although the rule says each side receives four challenges, imagine if a trial judge gave the defense six challenges instead.  This is in clear violation of the rule.  In that situation, an appellate court would vacate the verdict and remand, meaning the plaintiff would receive a new trial due to the judge’s error.  This is called the reversible error rule, where an unarguable mistake by the judge that affects or could have affected the substantial rights of a party warrants a new trial.

However, even some clear mistakes may not be worth appealing.  Just as a referee might make one or two incorrect calls over the course of a 48 minute game, a trial judge will make some arguable or incorrect decisions over the course of days or weeks of trial.  If an appellate court were to grant a new trial based upon every one of those mistakes, however minor, nothing would ever be resolved at trial.

Thus, even when the trial judge makes a clear mistake, the appellate court will not change the outcome unless that mistake substantially influenced the ultimate outcome of the trial or undermined the basic fairness of the trial.  This is called the harmless error standard and is set forth in Colorado Rule of Civil Procedure 61.  Virtually every trial involves a few mistakes. It takes a significantly damaging mistake to make an appeal worthwhile.

Other circumstances may arise that affect a person’s chances of success on appeal based upon a trial error.  As examples, where a trial error infringes upon a person’s constitutional rights (for example, where the judge’s ruling precludes a person from presenting a defense) or where an attorney objects to a trial error during the trial, the appellate court may apply a standard that is more likely to lead to a new trial.  Such variances make it very important that your trial counsel is well-versed in appellate law, so she or he can protect your appellate rights during trial. See my post Grounds for Appeal: What Mistakes can be Challenged to learn more.

Photo cred: Associated Press

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