In this post, I’ll explain the plain error standard of appellate review. The plain error standard generally comes into play when the appellant has failed to properly preserve an appellate issue by raising it before the district court. One of the foundational premises of our system of trial and appellate courts is that appellate courts are limited to reviewing the actions of the district court—it is inefficient and unfair to allow parties to try one set of arguments before the trial court and, if that fails, try a whole different set of arguments on appeal. Furthermore, the appellate courts benefit from the analysis of the lower courts, so allowing parties to raise new issues on appeal would deprive the appellate courts of the lower courts’ analyses. For these reasons, a party typically forfeits or waives an argument not first presented to the district court and cannot raise an argument for the first time on appeal.

Review for plain error is an exception to this premise. Although the precise articulation of the plain error standard varies somewhat from court to court, a fairly typical set of criteria for plain error requires an appellant to show that (1) an error occurred (2) which was clear or obvious and which not only (3) affected the appellant’s substantial rights, but also (4) seriously impaired the fairness, integrity or public reputation of the judicial proceedings.

The courts interpret this exception quite narrowly, such that it took a lot of hunting to find a suitable civil case where a circuit court reversed a district court ruling on the basis of plain error (it comes up much more frequently in criminal cases). Triantos v. Guaetta & Benson, LLC, 91 F.4th 556 (1st Cir. 2024), provides one example of a successful appeal based on plain error. In Triantos, the defendant filed a Rule 11 motion seeking sanctions against the plaintiff after the plaintiff had already appealed the order dismissing his complaint. The plaintiff defended the motion on the merits, the district court granted the motion, and the plaintiff appealed. The First Circuit reversed because the defendant had filed the Rule 11 motion without providing the plaintiff with the mandated safe harbor by serving it 21 days before filing it to give the offending party an opportunity to cure the Rule 11 violation. Although the plaintiff did not raise the procedural issue before the district court, the error was crystal clear and the policy behind the safe harbor was important, so the First Circuit vacated for plain error.

Jury Instructions

One area where the plain error standard arises more frequently is in appeals challenging the jury instructions. Rule 51(d)(2) explicitly provides that an appellate court may examine a jury instruction for plain error even if the appellant did not properly preserve the objection, if the error “affects substantial rights.” See Ewing v. 1645 W. Farragut LLC, 90 F.4th 876 (7th Cir. 2024).

While Rule 51 authorizes such plain error review, however, the courts rarely find the presence of a plain error sufficient to warrant reversal. In Triantos, the procedural error was blatant and unambiguous—Rule 11 mandates compliance with the safe harbor provision and the district court imposed sanctions without providing any explanation as to why sanctions were appropriate notwithstanding the movant’s procedural violations. More often, the appellate courts find sufficient gray area or murkiness in the case law to render an error insufficiently “plain” to qualify.

Even a plain error in the jury instructions will not support reversal in all circumstances. Courts often find a plain error to be “harmless” in the overall context of the case, such that reversal is not called for. See, e.g., Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1331 (11th Cir. 1999). Furthermore, there is a distinction between a forfeited objection and a waived objection. An appellant forfeits an objection by failing to preserve it at the trial court level. Such objections are still subject to plain error review. In contrast, an appellant waives an objection if the appellant played some role in causing the problem in the first place. Such waived objections are not even reviewable for plain error. In other words, an appellant cannot propose a jury instruction to the district court and then later argue that the district court made a plain error by giving the proposed instruction.

Motions for Judgment as a Matter of Law

Appellate courts also frequently apply the plain error standard in the context of motions for judgment as a matter of law. Rule 50(a) requires that a party contending that an opponent has failed to submit sufficient evidence to make its prima facie case must make a motion during trial—before the case goes to the jury—in part to place the opponent on notice of the potential gap in its evidence and to allow it to cure the gap by introducing additional evidence. This requirement applies to matters pertaining to evidence and proof, but not to pure legal issues. See Dupree v. Younger, 598 U.S. 729, 735 (2023).

Rule 50(b) requires that, if the court denied the party’s Rule 50(a) motion and the jury subsequently issues a verdict against the party, the party must then file a renewed motion for judgment as a matter of law, which is limited to the same grounds the party raised in its Rule 50(a) motion. Appeal is generally then limited to those grounds asserted in the Rule 50(a) and (b) motions, with a very narrow exception for plain error.

Boley v. Armor Corr. Health Servs., Inc., 2024 WL 5244555 (4th Cir. 2024), illustrates the Rule 50 sequence and its effects on appeals. The plaintiff sued a nurse and a doctor. At trial, the plaintiff presented expert testimony about the harm caused by the doctor’s actions but not about the harm caused by the nurse’s actions. In their Rule 50(a) motion, the defendants challenged the causation evidence as it pertained to the doctor, but didn’t mention the nurse. The jury returned a verdict against the nurse but not the doctor, and on appeal the defendants argued that the jury’s finding exonerating the doctor was effectively a break in the causal chain from the nurse’s actions to the plaintiff’s harm. The Fourth Circuit found that there was a conceivable causal path from the nurse’s conduct to the plaintiff’s harm, preventing reversal for plain error.

Advice

The bottom line is that the plain error standard is extremely difficult to meet—it’s the trial equivalent of a “hail Mary” pass in football. The difficulty of succeeding under this standard highlights the diligence that trial lawyers need to exercise to properly preserve issues for appeal as they arise during the trial process.

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Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the April 2025 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2025 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.