There is a tension between court and lawyers when a determination has to be made by the court as to whether an attorney’s breach of a court rule should visit harm on that attorney’s client. The appellate court has a difficult task in some instances determining whether trial error should result in a reversal and remand for a new trial because “it clearly appears that there was a miscarriage of justice under the law.” R.2:10-1. And more so, if the appellant’s attorney failed to properly object to a critical trial court ruling. There the measuring rod is whether the error was “clearly capable of producing an unjust result.” R.2:10-2. Although the verbiage differs, the language of both rules indicate that the examined error must be of such a magnitude as not to be “harmless error,” but rather one which had a significant impact on the outcome below.

Reasonable persons and reasonable judges can differ on the point at which error, R.2:10-1, morphs into the plain error of R.2:10-2, thereby producing the unjust result which requires reversal.

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