In any appeal, criminal or civil, state or federal, the appellant (the side bringing the appeal) tries to prove in his appellate brief that the lower court made a mistake. The appellee (the side defending against the appeal) tries to show in the appellee’s brief that the judgment appealed should be affirmed (that is, that the appellant is not entitled to relief). Those arguments fall into three categories: Waiver, Merits and Harmlessness.
Waiver: Seldom does an appellant win with an argument that the court whose judgment is appealed has not considered. Steps must be taken to preserve an issue for appeal. For example, if the appellant wants to argue on appeal that the trial court made a mistake (erred) in allowing a witness to testify, the appellant will probably have to object when the witness testifies. Additional steps may be required. If the appellant takes all required steps, the issue is preserved for review. If not, the appellant has waived the issue and the appellate court need not decide the issue. Sometimes the appellate court is authorized to overlook a waiver. Even constitutional rights can be waived.
Merits: Is the claim of error meritorious? That is, has the appellant proved that the trial court made a mistake? Most non-lawyers assume that this is the only thing that matters on appeal. However, as you see, it is only one of three things that matter very much. The vast majority of rejected appeal claims are meritorious but do not lead to relief because of one or both of the other two considerations.
Harmlessness: Even if the claim is preserved for review and is meritorious, the appellee will argue that the error is harmless, that is, a technical error and did not affect the rights of the appellant. For example, if the claim on appeal is that the trial court erred in cutting off the cross-examination of a witness, the appellee will argue that the evidence in support of the judgment appealed was so overwhelming that the error could not affect the result. The appellant will argue that the evidence was so close that the error was crucial.
For the appellant to win, he must show that he has not waived his appeal claim, the claim is meritorious AND the error is not harmless. Two out of three is not good enough.
