Purdy v. Deere & Co. ( 2014 )

BALMER, C. J.,

concurring.

This case raises the ubiquitous and difficult issue of what an appellate court should do in the face of trial court error: When should error lead to reversal and when, notwithstanding error of some kind, should the judgment below nevertheless be affirmed? The question has vexed appellate court review of criminal and civil cases for centuries and touches on such fundamental concerns as fairness, the protection of constitutional rights, the role of juries, the legitimacy of trial and appellate court processes, and the prudent use of judicial resources. See generally Roger J. Traynor, The Riddle of Harmless Error (1970). Courts have struggled to articulate the appropriate test and, once articulated, to undertake the more nuanced task of applying it to specific cases.

The majority opinion is a useful addition to the ongoing effort of the Oregon appellate courts to articulate and apply the proper test for reversing a trial court judgment when the appellant demonstrates error in the trial court proceedings. I agree with the majority’s analysis and disposition of this case and with its discussion of Shoup v. WalMart Stores, Inc., 335 Or 164, 61 P3d 928 (2003) and ORS 19.415(2). I write separately to emphasize several aspects of the task at hand and to suggest at least some ways that a party seeking to reverse a trial court judgment can provide assistance to the appellate court.

Few legal proceedings are flawless, of course, and to reverse every trial court judgment because there was error of some kind in the proceeding would undermine critical goals of justice, finality, and efficiency. In fact, courts at various times have done just that — reversing convictions because, for example, the indictment charged a defendant with entering a building with the intent to commit “larcey,” and the statute criminalized only entry with intent to commit “larceny,” or when the indictment stated that the offense was “against the peace of the State,” instead of “against the peace and dignity of the State.” Traynor, The Riddle of Harmless Error at 3-4, 85 n 3. Yet to require an appellant to demonstrate that the trial court judgment was “clearly wrong,” as some courts have, see id. at 17-18, 89 n 45, would pose an often insurmountable hurdle for the party seeking reversal and would countenance serious legal error at the trial level.

The Oregon statute providing for appellate review of trial court judgments sets a standard for reversal between those two extremes. It requires a party seeking reversal to demonstrate that trial court error “substantially affect [ed]” the party’s rights, but does not require a showing that the error necessarily led to an incorrect judgment. ORS 19.415(2) puts it this way: “No judgment shall be reversed * * * except for error substantially affecting the rights of a party.” In Shoup, we analyzed and applied that provision, noting that “reversal of a judgment is the exception, not the rule” and that, while the standard for reversal is neutral as between plaintiffs and defendants, “it places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and then seeks reversal or modification of the judgment on appeal.” 335 Or at 173-74.¹ Moreover, when a party seeks reversal of a jury verdict, the Oregon Constitution imposes a further barrier by barring “re-examin[ation]” of any fact tried to a jury, “unless the court can affirmatively say there is no evidence to support the verdict.” Or Const, Art VII (Amended), § 3. The obvious and intended (and salutary) effect of those legal principles is to place a thumb on the scale in favor of the trial court judgment.

The more difficult questions are how to articulate the legal standard — other than simply repeating the words of ORS 19.415(2) — and how to apply it to specific cases. The majority correctly points out that it is not enough for the appellant to argue that the error “possibly” affected the outcome of the case. 355 Or at 226. Except for the most trivial of errors, it almost always can be argued that an error at trial — in evidence admitted or excluded, in an instruction given or not given, in a comment by a judge, attorney, or witness that should not have been made — “possibly” affected the outcome. Nor, as the majority states, must the appellant show that the jury actually found against the appellant on the claim or defense to which the error pertained. Id. Lacking access to the jury room or the individual and group decision making processes that occur there, parties and courts rarely will be able to determine whether the error actually had an effect on the verdict. To set the bar that high would be inconsistent with ORS 19.415(2), which does not require a party to demonstrate that it would have prevailed, absent the error, but only that the error “substantially affect[ed]” its rights.

So, the bar for the appellant is somewhere above “possibly affected” the result, but below “necessarily affected” the result. Elaborating on Shoup, the majority articulates the statutory standard to be “whether — in an important or essential manner — the error had a detrimental influence on a party’s rights”; the appellate court must “assess [] the extent to which an error skewed the odds against a legally correct result.” 355 Or at 226. That is not like a preponderance of the evidence test to determine whether a plaintiff in a civil case has met its burden of showing that a particular assertion or fact was “more likely true than not.” “Some” likelihood — more than “a little” — that the error influenced the result is required, id., but “how much” more will depend on factual and legal issues in the case as determined from the trial court record. The majority, correctly in my view, eschews a more precise quantification of the probability that the error affected the result. Of course, the critical task is applying the statutory standard to the record in a particular case.

Fortunately, there are other aspects of appellate review that this court routinely considers that make the problem less daunting than it might appear in the abstract. First, we have long recognized that some trial errors are substantial and more likely to have affected the result, while others are less likely to have done so. Evidentiary error, for example, is “not presumed to be prejudicial,” OEC 103(1), and we have relied on that presumption in affirming judgments notwithstanding the erroneous exclusion or admission of evidence. See State v. Gibson, 338 Or 560, 575-77, 113 P3d 423, cert den, 546 US 1044 (2005) (citing OEC 103(1) and concluding that improperly admitted evidence was not prejudicial). Similarly, when considering a claim of instructional error, we do not look at the challenged instruction in isolation, but rather examine the instructions as a whole to determine whether they accurately state the law. State v. Oatney, 335 Or 276, 290, 66 P3d 475 (2003), cert den, 540 US 1151 (2004). If the instructions as a whole provide a complete and accurate statement of the law sufficient for the jury to properly decide the issues before it, an appellate court is unlikely to find that a claimed instructional error was prejudicial and to reverse a judgment on that ground. See State v. Bowen, 340 Or 487, 516-17,135 P3d 272 (2006), cert den, 549 US 1214 (2007) (concluding that, because instructions considered as a whole included complete and correct statements of the law necessary to decide the charges, fact that instructions perhaps should have been given in different sequence and that lesser-included offense instruction should have been given in connection with aggravated murder charge, rather than intentional murder charge, was not prejudicial).

Moreover, we do not look at trial court errors in the abstract — rather, we examine those errors in the context of the trial record as a whole, including the parties’ claims and defenses, the evidence admitted and excluded, the parties’ theories of the case, and the instructions. This court was able to reach the result it did in Shoup only after considering those factors. Shoup, 335 Or at 178-79. As the majority notes, in both civil and criminal cases, this court has generally engaged in that kind of contextual, record-based review to assess whether error is prejudicial. 355 Or at 227-28, 230-31 (discussing cases).

The approaches just discussed regarding eviden-tiary and instructional error, and the appellate courts’ commitment to reviewing the trial court record, provide some structure to the ORS 19.415(2) inquiry. That difficult inquiry, however, inevitably requires the exercise of some amount of discretion by the appellate court. See Traynor, The Riddle of Harmless Error at 15-17 (discussing discretion in harmless error review).

But litigants need not leave themselves at the mercy of an appellate court trying to determine from the record whether trial court error “affected” the judgment “a little,” “some,” or “a lot.” Special verdict forms, such as the form proposed by the plaintiff (but objected to by the defendant) in Shoup that would have asked the jury to state separately whether it found the defendant negligent based on its own negligence or that of its employee, can greatly assist an appellate court in determining whether error was prejudicial. Verdict forms separating liability, causation, and damages can clearly demonstrate that an error did — or did not — affect the verdict. See ORCP 61 B (authorizing use of special verdict). Interrogatories can separate jury determinations as to the liability of one party among multiple defendants or one claim among multiple claims and can even address issues related to specific evidence, the admissibility of which might become a critical issue on appeal. See ORCP 61 C (authorizing use of interrogatories).

I fully agree with the majority that an appellant need not “prove,” by means of a verdict form or an interrogatory, that the jury based its verdict on improperly admitted evidence or an instruction that turned out to be erroneous. And the majority is correct that attempting to come up with a verdict form or interrogatories that would allow an appellate court to determine whether any particular jury instruction or evidentiary ruling — later asserted to be erroneous — necessarily affected the judgment could, in a complicated case, quickly lead to a complex “decision tree” for the jury’s deliberative path that might create more problems for jurors, parties, and the court than it would solve. See 355 Or 230 (discussing limitations of verdict forms).

However, lawyers aware of the difficulty that appellate courts face in determining whether error is prejudicial or harmless — and of the amount of discretion appellate courts inevitably exercise in that area — should consider whether they and their clients would be better off on appeal if they used verdict forms or interrogatories that provided greater insight into the basis for the jury’s verdict. Here, the verdict form consisted of separate questions about products liability and negligence as to Deere and Company and negligence as to Ramsey-Waite Company. However, each question actually was a compound question asking both about a theory of liability (products liability or negligence) and about the very different issue of causation. Because causation was vigorously disputed at trial, it would have made sense for one or all parties to have requested a verdict form that separately addressed that issue.

Similarly, in Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or 319, 96 P3d 1215 (2004), the court was confronted with a verdict form that asked the compound question of whether the defendant was negligent and, if so, whether its negligence was a cause of the plaintiffs damages. The jury answered “no.” 337 Or at 323. Causation was a key issue at trial and the subject of assignments of error related to instructions and a requested interrogatory. Yet the compound question posed to the jury prevented the court from determining whether the jury had concluded that the defendant was not negligent or that the defendant, although negligent, did not cause the plaintiffs damages. Again, simply separating the question of liability from the question of causation on the verdict form would have provided substantial assistance to the appellate courts in seeking to determine whether any trial court errors had “substantially affect [ed]” the judgment. In appropriate cases, lawyers can assist their clients, and the fair and efficient administration of justice, by crafting verdict forms and interrogatories that will help appellate courts determine when trial court errors should result in reversal. See Traynor, The Riddle of Harmless Error at 23 (advocating use of special verdicts and interrogatories).

1 As the majority opinion discusses, Lyons v. Walsh & Sons Trucking Co., Ltd,., 337 Or 319, 96 P3d 1215 (2004), extended the logic of Shoup beyond its proper scope. That result perhaps can be traced in part to the comment in Shoup that ORS 19.415(2) places on the appellant the “burden to make a record that demonstrates prejudicial error.” Shoup, 335 Or at 173-74. As the majority points out, that statement should not be taken to mean that the appellant must ensure that the appellate court can determine from the record that the error necessarily or actually affected the judgment. Rather, it asserts the unsurprising point that the appellate court will conduct its review as to whether the error “substantially affect [ed]” the appellant’s rights based on the record before it — and if the record includes nothing that would permit the appellate court to reach that conclusion, the result will be affirmance. The appellant bears that risk.