Every trial lawyer is familiar with that flash of recognition shooting like electricity through you when an event occurs at trial—an unexpected answer from a witness, an unfair attack by an adversary, an erroneous ruling from the judge—that you instinctively know can torpedo your case or leave it seriously wounded. Prompt, skillful action can correct the course at trial and, also, have a significant impact on the likelihood of success on appeal.
The Rules of Court establish a high bar for reversal. Although Rule 2:10-2 is invariably linked to the plain error standard, it actually defines the standard for any “noticeable” error, commanding, “Any error or omission shall be disregarded by the appellant court unless it is of such a nature as to have been clearly capable of producing an unjust result ….” The standard for errors not brought to the attention of the trial court is even higher, according the appellate court discretion to “notice” plain error “in the interests of justice.” That means “[t]he error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached.” Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 2:10-2.
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