Appealing to the Appellate Division: Standards of Review- Part 1: The Plain Error Rule

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeals & Appellate Law Attorney

Making your case to the Appellate Division or even the New Jersey Supreme Court as to why the trial court made a reversible error can sometimes be the toughest thing to do as a litigator.  Let’s consider this from a practical viewpoint.  An appellate court judge does not have the benefit of seeing the parties at trial.  He or she cannot look at the physical evidence besides any documents submitted in the appendix of the brief, and is attempting to re-create what was done in the trial court to see if an error was made.  The job of the appellate court is to make corrections to errors made on the record, whether they are improper evidentiary rulings by the judge or an order that grants summary judgment to one party over another which dismisses the entire case.  This is why the New Jersey Supreme Court used to be called the Court of Errors and Appeals.  That was the Court’s entire purpose- correcting mistakes and errors made by the trial court.

Over the next couple of blogs, I will be considering those standards of appellate review the appeal courts consider when making their decisions.  Note that I will be reviewing the main standards of review the court uses when reviewing an appeal: plain error, abuse of discretion, and de novo.  There are many different standards of review for all different types of cases, such as a motion for reconsideration or summary judgment motions, but they are specific to the type of ruling that is made, and not considered a general standard a court looks at when reviewing a case.

When making an appeal, you need to ask two questions about the error.  Was it timely made during the litigation process and/or at the trial level?  If so, did the question involve an interpretation of the law?  If the answer to the first question is no, you have a near monumental task ahead of you.  That is because under normal circumstances, the appellate court is going to disregard the error as harmless and won’t consider it a basis to appeal.  The reasoning for this is simple.  If you didn’t jump up and down at the trial level seeking a correction to this error, why all of a sudden is it now an error that the appellate court needs to fix?  This does not mean all is lost.  Rule 2:10-2 provides the standard by which this error, called “plain error,” will be considered by the court.  The error must be shown to have been “clearly capable of producing an unjust result” which is in the interests of justice for the appellate court to consider and reverse it.  This means that but for the error, the appellate court would have produced a totally opposite conclusion that actually affected the outcome.

The plain error hurdle is very high to overcome, and requires the appellant to make a good showing of facts that but for this mistake, the court would have come to a different conclusion.  The court is understandably skeptical that this was not brought up at the trial level.  It is going to wonder why you kept this issue to yourself before telling the appellate court.  Plain error should be avoided by ensuring that there is something done on the record to ensure this is an appealable issue.  I will discuss this further in our “Preserving an Appeal” blog post.

To discuss your NJ appeal & appellate court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.