Appellate Law

Failure To Claim Prejudice Destroys ?Plain Error? Argument

By Steven R. Merican

In this intercontinental visitation battle, Alixio Khazal claimed ?plain error? was grounds for reversal of the trial court?s decision to permit the mother visitation of their child in the United Arab Emirates. The dispute centered on the guardian ad litem?s oral report given at a pretrial conference, which included a recommendation to allow visitation in the UAE. Alixio claimed he was surprised by the guardian ad litem?s oral report, that the report should have been in writing, and that he was thus deprived of the opportunity to cross-examine the guardian. But because the father did not assert an objection at the pretrial conference or request the guardian?s testimony, cross-examination, or written report, the appellate court ruled that those positions were waived on appeal.

Alixio claimed it was ?plain error? to allow the guardian ad litem?s oral report and not to allow cross-examination. He argued that the plain error doctrine trumped the waiver rule. The First District Court of Appeals reviewed the use of the plain error doctrine in a civil case.

The plain error doctrine does permit an appellate court to review errors not properly preserved at the trial level ? "But this doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process."

Before an error can rise to the level of a plain error, there must first be a "threshold-level showing" of prejudice ? The father has not explained what he would have done differently if he had received the guardian's recommendation earlier and in writing. Thus, this court finds both that the father waived this issue for appeal and that it did not rise to the level of a plain error.

Read the whole case, IRMO Saheb, No. 1-06-3304 (11/13/07), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on March 17, 2008 (boomark / email).